In Determining Venue, Agent's Place of Business Does Not Qualify as Defendant's Place of Business

The court found that venue was improper for plaintiff's patent infringement action and rejected the argument that venue was proper because defendant's agent had a regular and established place of business in the district. However, the court deferred ruling on defendant's motion to dismiss pending plaintiff's response to the court's suggestion to transfer under 28 U.S.C. § 1404(a). "[Plaintiff] does not allege that [defendant] itself has 'a place of business' in this District. Instead, [plaintiff] argues that . . . the place of business for [defendant's] agent . . . is in this District. . . . But, even assuming that [the alleged agent] is [defendant's] agent (as opposed to distributor, supplier, or contractor), the Federal Circuit recently held that '[the place] must be that of the defendant.' Interpreting the statute two-blocks this conclusion. In § 1400(a), Congress permits suits for copyright and trademark infringement to be brought 'in the district in which the defendant or his agent resides or may be found.' In § 1400(b), Congress does not extend the same permission to suits for patent-infringement. If Congress had intended to include the place of a defendant's agent's business, it could certainly have done so. . . . Section 1406(a) is mum about plucking out an offending claim to save another, so I am inclined to dismiss the action. . . . Because [plaintiff] says that dismissal will waste everyone's time, [plaintiff] is directed to advise me . . . whether it consents to transfer under § 1404(a) – or to propose an alternate suggestion consistent with this order."

Newpark Mats & Integrated Services LLC v. Equipotential Matting, LLC et al, 4-17-cv-00304 (ARED October 26, 2017, Order) (Wilson, USDJ)