{"id":1765,"date":"2017-09-21T00:43:20","date_gmt":"2017-09-21T04:43:20","guid":{"rendered":"https:\/\/patents.harnessip.com\/?p=1765"},"modified":"2017-11-25T12:38:00","modified_gmt":"2017-11-25T17:38:00","slug":"employee-residence-is-not-the-defendants-regular-and-established-place-of-business","status":"publish","type":"post","link":"https:\/\/patents.harnessip.com\/?p=1765","title":{"rendered":"Employee Residence is Not the Defendant’s Regular and Established Place of Business"},"content":{"rendered":"

In re: Cray Inc.<\/a>, 2017-129 (September 21, 2017), the Federal Circuit granted Cray’s Petition for Writ of Mandamus and directed the Eastern District of Texas to transfer a patent infringement action pursuant to\u00a028 U.S.C. \u00a71406(a). \u00a0The Federal Circuit found that the\u00a0district court misinterpreted the scope and effect of its precedent in determining that Cray maintained \u201ca regular and established place of business\u201d in the Eastern District of Texas within the meaning of 28 U.S.C. \u00a71400(b).<\/p>\n

Although Cray did not rent or own an office or any property in the Eastern District of Texas, it allowed Harless and Testa to work remotely from their respective homes in the district. \u00a0The district court found that activities of Harless\u00a0working from his home as a \u201csales executive\u201d made his personal residence Cray’s regular and established place of business in the district.<\/p>\n

The Federal Circuit found that although the law was unclear and the error understandable, the district court misunderstood the scope and effect of our decision in Cordis<\/em>, and its misplaced reliance on that precedent led the court to deny the motion to transfer, which we find to have been an abuse of discretion.<\/p>\n

The only question before the court was whether Cray has a \u201cregular and established place of business\u201d in the Eastern District of Texas within the meaning of \u00a71400(b). \u00a0The Federal Circuit agreed with the district court that \u201cthe regular and established place of business standard requires more than the minimum contacts necessary for establishing personal jurisdiction or for satisfying the doing business standard of the general venue provision.”<\/p>\n

The Federal Circuit said that:<\/p>\n

The statutory language we need to interpret is \u201cwhere the defendant . . . has a regular and established place of business.\u201d 28 U.S.C. \u00a7 1400(b). The noun in this phrase is \u201cplace,\u201d and \u201cregular\u201d and \u201cestablished\u201d are adjectives modifying the noun \u201cplace.\u201d The following words, \u201cof business,\u201d indicate the nature and purpose of the \u201cplace,\u201d and the preceding words, \u201cthe defendant,\u201d indicate that it must be that of the defendant. Thus, \u00a7 1400(b) requires that \u201ca defendant has\u201d a \u201cplace of business\u201d that is \u201cregular\u201d and \u201cestablished.\u201d All of these requirements must be present. The district court\u2019s four-factor test is not sufficiently tethered to this statutory language and thus it fails to inform each of the necessary requirements of the statute.<\/p><\/blockquote>\n

In deciding whether a defendant has a regular and established place of business in a district, no precise rule has been laid down and each case depends on its own facts. \u00a0However,\u00a0the analysis must be closely tied to the language of the statute. \u00a0The first requirement is that there \u201cmust be a physical place in the district.\u201d The second requirement for determining venue is that the place \u201cmust be a regular and established place of business.\u201d \u00a0sporadic activity cannot create venue. \u00a0Finally, the third requirement when determining venue is that \u201cthe regular and established place of business\u201d must be \u201cthe place of the defendant.\u201d \u00a0Thus, the defendant must establish or ratify the place of business. It is not enough that the employee does so on his or her own. \u00a0Relevant considerations include whether the defend-ant owns or leases the place, or exercises other attributes of possession or control over the place. \u00a0In the final analysis, the court must identify a physical place, of business, of the defendant.<\/p>\n

The Federal Circuit stressed that no one fact is controlling, but that taken together, the facts cannot support a finding that Cray established a place of business in the Eastern District of Texas. Thus venue cannot exist there under \u00a7 1400(b).<\/p>\n","protected":false},"excerpt":{"rendered":"

In re: Cray Inc., 2017-129 (September 21, 2017), the Federal Circuit granted Cray’s Petition for Writ of Mandamus and directed the Eastern District of Texas to transfer a patent infringement action pursuant to\u00a028 U.S.C. \u00a71406(a). \u00a0The Federal Circuit found that … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[24],"tags":[],"class_list":["post-1765","post","type-post","status-publish","format-standard","hentry","category-venue"],"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/1765","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1765"}],"version-history":[{"count":2,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/1765\/revisions"}],"predecessor-version":[{"id":1835,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/1765\/revisions\/1835"}],"wp:attachment":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1765"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1765"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1765"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}