InfoGation Corp. v. HTC Corporation et al, 3-16-cv-01902 (CASD July 5, 2017, Order) (Huff, USDJ)
Friday, July 7, 2017
Defendants' Motion for Judgment on the Pleadings Under 35 U.S.C. § 101 Waives Venue Objection
Following the Supreme Court decision in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017), the court denied defendants' motion to dismiss plaintiff's patent infringement action for improper venue because defendants waived their initial venue challenge through their litigation activity, particularly by seeking to invalidate the patent-in-suit under 35 U.S.C. § 101. "Defendants denied that venue was proper in this District in their answer. . . . Nevertheless, 'merely filing an initial venue objection does not preclude subsequent waiver of the objection.'. . . Defendants have litigated the consolidated action in this Court for approximately a year, including by serving invalidity contentions, filing two motions to stay, filing a motion for judgment on the pleadings, and participating in claim construction. . . . The Court finds particularly important the fact that Defendants filed a motion for judgment on the pleadings seeking to invalidate the [patent] under 35 U.S.C. § 101. . . . [F]iling a motion for judgment on the pleadings on the issue of invalidity prior to filing a motion to dismiss for improper venue 'constitutes a tacit admission on the part of the movant that the court has personal jurisdiction, that venue is properly laid there, and that the court should dispose of the case on its merits.'"