Waiting for Outcome of Rule 12 Motion Waives Objection to Improper Venue

The court denied defendant's motion to dismiss or transfer plaintiff's patent infringement action for improper venue because defendant waived its venue defense by waiting for the outcome of its earlier Rule 12 motion before raising its venue defense. "The rules specifically provide a system in which venue challenges are not available for tactical deployment. A party cannot wait to see how a motion to dismiss on the merits turns out before challenging venue. . . . [Defendant] had several weeks in which to notify the court that it wanted to supplement its pending motions to dismiss. During that time period, [defendant] notified the court of other recent decisions impacting the [35 U.S.C. §101] motion. [Defendant] similarly could have, and should have, notified the court of the [TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017)] decision if it did not want to waive the venue challenge. By waiting to see how the court would come out on its unpatentability motion, [defendant] waived its venue challenge."

InsideSales.com v. SalesLoft, 2-16-cv-00859 (UTD September 26, 2017, Order) (Kimball, SJ)