In re Micron Notwithstanding, Substantial Engagement in Litigation Waives Venue Objection

The court denied defendants' motion to dismiss plaintiff's patent infringement action for improper venue and found that defendants waived their venue defense through litigation conduct. "⁠[I]t was not until a few days after their IPR petitions were denied and more than two months after [TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017)] was decided that Defendants finally sought to dismiss this case for improper venue. [In re Micron Tech., Inc., No. 2017-138 (Fed. Cir. Nov. 15, 2017)] does not invite defendants who have substantially engaged in a case to reassert an abandoned defense once it becomes convenient or advantageous for them. . . . Moreover, before TC Heartland was decided . . . Defendants sought to transfer this case to the Western District of Tennessee under § 1404 rather than § 1406. This is particularly significant because a motion under § 1404 is premised on venue being proper in the transferor court whereas a motion under § 1406 reflects an objection to the current venue as being improper."

Intellectual Ventures II LLC v. FedEx Corporation et al, 2-16-cv-00980 (TXED November 22, 2017, Order) (Gilstrap, USDJ)