In 2017, the Supreme Court overruled the Federal Circuit’s then-longstanding interpretation of 28 USC § 1400(b)—the statute that governs venue in patent infringement lawsuits. This ruling significantly narrowed patent venue. It also brought § 1400(b)’s neglected “regular and established place of business” test back into the light of day. Under this revived test, venue is proper if a defendant has a regular and established place of business in the judicial district where suit is brought. Despite initial guidance from the Federal Circuit, the resurrected test caused confusion and disagreement at the district court level.
One disagreement concerned whether § 1400(b) implicitly requires that the defendant have a human agent conducting business at the place in question. This can be called the “human-agent requirement.” Most district courts to address the issue—and now, the Federal Circuit itself—have endorsed the requirement. In these courts’ view, a place satisfies the “regular and established place of business” test only if an agent of the defendant is physically present, doing business there on the defendant’s behalf. This Comment argues that imposing the human-agent requirement is a mistake. First and most important, the requirement is an extratextual add-on, un-moored from the statute’s meaning. Second, it will make the early stages of patent litigation more complex, uncertain, and expensive than they already are. Third and finally, though the requirement might seem like the only way to avoid overbroad patent venue, it isn’t. In a world without the human-agent requirement, courts could limit venue by robustly enforcing the “place” requirement—which is unambiguously found in § 1400(b)’s plain text.
"Simplifying Patent Venue,"
University of Chicago Law Review: Vol. 87:
7, Article 4.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol87/iss7/4