Wednesday, January 17, 2018

Supplying Equipment For Use at Customers’ Facilities Does Not Create Regular and Established Place of Business

The court granted defendant's alternative motion to transfer for improper venue because defendant did not have a regular and established place of business through its provision of equipment to customers in the district. "⁠[Plaintiff] also relied on [defendant's] 'business model' wherein [defendant], for the convenience of their customers, supplies its end use customers with [defendant's] equipment to be used at the customer’s facility. . . . This rather creative argument does not satisfy the test set forth in [In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017)] for the simple reason that the equipment in question is not a place. . . . The fact that the equipment is moved onto the customer’s property, and may be removed by [defendant] or relocated by the customer with [defendant's] permission, precludes any finding that this equipment could serve as a physical, geographical location for purposes of demonstrating that [defendant] has a regular and established place of business within the district. Moreover . . . servicing a customer at the customer’s facility cannot transform that facility into the patent defendant’s place if the defendant does not hold such place out as its own."

Automated Packaging Systems, Inc. v. Free Flow Packaging International, Inc. d/b/a FP International, 5-14-cv-02022 (OHND January 12, 2018, Order) (Lioi, USDJ)

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