On July 5, 2019, the Federal Circuit issued a decision in Westech v. 3M (Fed. Cir. 2019). The court held that in order to establish proper venue after TC Heartland, the plaintiff must plead facts that support an allegation that the defendant has a "regular and established place of business" in the venue to survive a motion to dismiss.
Relevant excerpts from the decision are provided below:
Instead of pleading facts to support proper venue, Westech parroted § 1400(b):
Venue is proper in this judicial district pursuant to 28 U.S.C. § 1400(b) because Defendants have committed acts of infringement in this judicial district and 3M has one or more regular and established places of business in this judicial district. Furthermore, on information and belief, Defendants maintain contractual relationships with distributors of the infringing products who are located in this judicial district, Defendants have sales representatives located in this judicial district, Defendants represent that they sell products in this judicial district, and Defendants earn substantial sales revenue from sales of the infringing products in this judicial district.
Two principles of patent venue law underlie our decision in this case. First, we held in ZTE that the plaintiff has the burden of establishing proper venue under 28 U.S.C. § 1400(b). 890 F.3d at 1013. Second, we held in Cray that venue under the patent statute is proper when the facts show that the defendant has a regular and established place of business physically located within the judicial district. 871 F.3d at 1360, 1364–67. Westech’s second amended complaint fails to meet these standards.
Westech failed to plead any facts showing 3M had a regular and established place of business physically located in the Western District of Washington.
Westech, in effect, claims that in lieu of pleading facts, it is sufficient to parrot the language of § 1400(b). This is incorrect. Simply stating that 3M has a regular and established place of business within the judicial district, without more, amounts to a mere legal conclusion that the court is not bound to accept as true.
