Failure to Challenge Venue In First Response to Complaint Did Not Waive Defendant’s Venue Objection​

Following the Supreme Court decision in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017), the court granted defendant's motion to transfer plaintiff's patent infringement action from the District of South Carolina to the District of Utah for improper venue and found the defendant did not waive venue by failing to contest the issue in its first response to plaintiff's complaint. "Waiver . . . is an equitable doctrine. . . . Even if in a literal sense it may be said that the law on patent venue has not changed since 1957, it is reasonable that litigants believe TC Heartland is a change in the law. . . . If the present matter were at eve of trial . . . this Court would hold the venue challenge waived. But litigation in this matter has just begun. [Plaintiff] will not be prejudiced by litigating this matter for the first time in a proper venue. It would be inequitable to deny [defendant] the opportunity to seek proper venue, where no prejudice results to Plaintiff, simply because [defendant] missed the venue-challenge deadline by 34 days because it reasonably relied on what nearly every litigant thought was binding precedent governing patent litigation venue for the past 27 years."

Hand Held Products Inc. d/b/a Honeywell Scanning & Mobility et al v. The Code Corporation, 2-17-cv-00167 (SCD July 18, 2017, Order) (Gergel, USDJ)