In re Cray Does Not Address Whether Place of Affiliate, Alter Ego, or Agent May be Attributed to Defendant in Determining Venue

The court granted in part plaintiff's motion for additional venue discovery. "In my view, [In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017)] does not address whether a physical place of a corporate affiliate or subsidiary or alter ego or agent can, for venue purposes, be attributed to the named defendant in a case. . . . [Defendant] seems to acknowledge that at least an alter ego or a sham entity . . . would allow the place of business of . . . that sham entity to be attributed to the named defendant for purposes of assessing regular and established place of business for purposes of determining proper venue. . . . [Defendant] emphasizes repeatedly that the record in [its] view already establishes that there is no relationship between any of the other related entities and the ANDA at issue in this case. I have not yet been pointed to where Cray or any other case at least from the Court of Appeals tells me that such a relationship is required in order for venue to be appropriate."

Bristol-Myers Squibb Company et al v. Aurobindo Pharma, USA Inc., 1-17-cv-00374 (DED November 28, 2017, Order) (Stark, USDJ)

Check Processing Patent Not Invalid Under 35 U.S.C. § 101

The court denied defendant's motion for summary judgment of invalidity on the ground that plaintiff’s check processing patent encompassed unpatentable subject matter because the asserted claims were not directed toward an abstract idea. "⁠[Defendant's] characterization [of the claims] omits the physical processing of checks from the point of sale to a different location, and in a particular sequence. In so doing, [defendant] improperly construes Claim 1 to 'a high level of abstraction.' The character of Claim 1 . . . is directed to a physical process for processing paper checks in which data captured from a paper check at the merchant’s point of purchase is used to credit a merchant’s account, while the same paper check is scanned at a later time and in a different location to create an image of that check. . . . [T]he [patent] purportedly improves upon the prior art through the processing of paper checks, via two-paths, at different times and locations, and the physical movement of paper checks. This claimed advance is not directed to an abstract idea. Additional language found in the [patent] emphasizes that the claimed invention is rooted in an enhanced processing method and a palpable application of that process, in a different time and place."

Solutran, Inc. v. US Bancorp et al, 0-13-cv-02637 (MND November 27, 2017, Order) (Nelson, USDJ)

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)

Pre-Suit Delay Seeking Preliminary Injunction Negates Claim of Irreparable Harm

The court denied plaintiff's motion for a preliminary injunction because plaintiff's delay of at least a year and a half negated plaintiff's claim of irreparable harm. "Defendant contends that Plaintiff delayed more than four years after the initial patent issued to bring suit. Plaintiff, however, points out that the last patent did not issue until June 28, 2016 and contends that [defendant] did not launch [the accused service] until February 2016. Furthermore, Plaintiff explains that, in 2016, it was preoccupied with other litigation and therefore waited to file the instant suit until late July of 2017. Even assuming Plaintiff’s version of the facts as true, the Court concludes that Plaintiff’s delay, at a minimum, of at least one and a half years, to seek preliminary injunctive relief militates against a finding of irreparable harm. . . . It is the delay from the time the movant becomes aware of the alleged injury to the time injunctive relief is sought that is controlling, not the time between initiating litigation and seeking injunctive relief in the ongoing litigation. . . . Plaintiff’s argument that it was busy with other litigation and therefore could not timely address the alleged infringement is not compelling."

CustomPlay, LLC v. Amazon.com, Inc., 9-17-cv-80884 (FLSD November 21, 2017, Order) (Marra, USDJ)

In re Micron Forecloses Waiver and Forfeiture of Venue Challenge Arguments

The magistrate judge recommended granting defendant's motion to transfer for improper venue and rejected plaintiff's argument that defendant waived its venue defense. "The Federal Circuit's decision in [In re Micron Technology, Inc., (Fed. Cir. Nov. 15, 2017)] establishes that [defendant] did not waive its venue defense under Rule 12(h)(l) and Rule 12(g)(2) because the Supreme Court's decision in [TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017)] represents an intervening change in the law. . . . Application of the forfeiture test set forth in In re Micron pursuant to Rule 1 and the Supreme Court's decision in [Dietz v. Bouldin, Inc., 136 S. Ct. 1885, 1891 (2016)] does not alter this conclusion. The present record reflects that trial is not scheduled to take place [for 20 months], and the court does not find that [defendant] failed to seasonably assert its venue defense, having previously contested venue in its [prior] motion to transfer under § 1404(a), and having filed the present motion promptly after the Supreme Court's issuance of its decision in TC Heartland. Given the circumstances of the present case schedule and the Federal Circuit's caution that 'the lee-way to find such forfeiture' is not broad, the court concludes that [defendant's] motion cannot properly be denied on grounds relating to its timeliness."

Treehouse Avatar LLC v. Valve Corporation, 1-15-cv-00427 (DED November 20, 2017, Order) (Fallon, MJ)

Patents for Generating Screen Displays for Interactive Applications Not Invalid Under 35 U.S.C. § 101

The court denied defendant's renewed motion for judgment on the pleadings on the ground that plaintiff’s patents for generating screen displays for interactive applications encompassed unpatentable subject matter because the asserted claims were not directed toward an abstract idea. "The claims of the [patents] are directed to a specific computer functionality improvement -- improving the capabilities of networks hosts and computer networks -- and are patent-eligible under step 1. . . . This method allows the computer to function more quickly by speeding the data storage process and reducing memory requirements, allowing the computer to serve more users. . . . [T]he claims of the [patents] are not directed to local data storage generally, but recite specific features for improving computer functionality by generating screen displays and partitions by breaking the data content of applications or advertisements into objects, storing them locally, and selectively retrieving them when needed. This method reduces the processing demand on the host system, allowing the host to function more efficiently."

International Business Machines Corporation v. Groupon, Inc., 1-16-cv-00122 (DED November 17, 2017, Order) (Stark, USDJ)

Counsel's Ethical Wall Does Not Establish Intent to Deceive For Inequitable Conduct Defense

The court denied plaintiff's motion for summary judgment that defendant's patent was unenforceable due to inequitable conduct because plaintiff failed to establish an intent to deceive through prosecution counsel's use of an ethical wall. "⁠[Plaintiff] cites to numerous pieces of evidence to support its arguments, including the ethical wall put in place at [defendant's prosecution counsel]. [Plaintiff] implies that ethical wall 'demonstrates an intent to deceive the PTO and supports a finding of inequitable conduct rendering the [patent-in-suit] unenforceable.' However, [defendant] offers an equally plausible inference from the ethical wall, which is that [counsel] was simply trying 'to preclude exchange of information between attorneys representing [a third party represented by defense counsel] and [defendant][.]⁠' Much of the other evidence [plaintiff] relies on is likewise susceptible to more than one reasonable inference, which precludes summary judgment in [plaintiff's] favor."

Ameranth, Inc. v. Pizza Hut, Inc., et. al., 3-11-cv-01810 (CASD November 16, 2017, Order) (Sabraw, USDJ)