The rise of the Western District of Texas to the world's busiest patent litigation forum, in only a couple of years, is due to the combination of Judge Alan Albright's patentee-friendly leanings and the last six words of 28 U.S.C. § 1400(b): "regular and established place of business."
A company may be sued over an alleged patent infringement in a particular district if that is where it resides (state of incorporation as clarified in TC Heartland; this allows so many patent cases to be brought in the small state of Delaware) or "has committed acts of infringement" (which is a given if a company offers services or sells products on a nationwide basis) and "has a regular and established place of business."
Shortly after TC Heartland, the Federal Circuit established "three general requirements relevant to the inquiry" of whether an alleged infringer has a "regular and established place of business" in a district (In Re: Cray Inc.):
"(1) there must be a physical place in the district;
"(2) it must be a regular and established place of business; and
"(3) it must be the place of the defendant."
The third requirement was outcome-determinative in Cray: it's not enough for an employee to work from a home office. The employer should pay the rent, for example.
The second requirement is not tautological. It is just put into the context of the first and third requirements, and the Federal Circuit provided further clarification on what is "regular" and what is "established." A business operating in a steady, uniform, orderly, and methodical manner would satisfy the regularity criterion, while "sporadic activity cannot create venue." The Federal Circuit also considered etymology: "established" actually has a root that also exists as a standalone word: "stable." A very clear case of stability that the appeals court provided is "a five-year continuous presence in the district." That doesn't mean a business couldn't move its location, but it would have to be stable "for a meaningful time period."
The Supreme Court and the Federal Circuit provided great guidance, and appeared to be aware of the problem of forum-shopping in patent litigation. Beyond what I just summarized, the Federal Circuit sometimes also moves venue on the basis that a different place has a much closer connection with the alleged acts of infringement. I will get back to that in another post on the Western District's growth.
Still, patent holders can sue a number of very significant technology companies in the Western District on a basis that is sufficient for Judge Albright to flatly deny a motion to transfer venue. I downloaded a sample of a few dozen W.D. Tex. patent infringement complaints, so I'm now going to quote the passages with which the plaintiffs (mostly non-practicing entities) seek to justify their forum choice (in alphabetical order):
Acer:
"Upon information and belief, Defendant Acer America Corporation is a corporation organized under the laws of the State of California, having an office with ongoing business located at 1394 Eberhardt Rd, Temple, TX 76504."
Amazon:
"Amazon.com Services, LLC is a company organized and existing under the laws of Delaware, with an office located at 11601 Alterra Pkwy., Suite 500, Austin, TX 87858-3358"
Apple:
"Apple has regular and established places of businesses in this District, including at 12545 Riata Vista Cir., Austin, Texas 78727; 12801 Delcour Dr., Austin, Texas 78727; and 3121 Palm Way, Austin, Texas 78758."
Atlassian:
"Atlassian resides in the Western District of Texas by maintaining a regular and established place of business at 303 Colorado Street, Suite 1600, Austin, TX 78701."
Blizzard Entertainment:
"On information and belief, Blizzard is a corporation existing under the laws of the State of Texas, with a principal place of business located at 9400 W Parmer Ln, Austin, TX 78717."
Broadcom:
"[Broadcom] has a regular and established place of business in the District, including a corporate office at 2901 Via Fortuna Drive, Austin, Texas 78746."
Cisco:
"Venue is also proper in this district because CSI [Cisco Systems, Inc.] has a regular and established place of business in this district. For instance, CSI has operations in this judicial district. For example, CSI has facilities located at 12515-3 Research Park Loop, Austin, TX 78759."
Dell:
"On information and belief, Defendant Dell Technologies, Inc. is a corporation organized under the laws of the State of Delaware, with its principal place of business at One Dell Way, Round Rock, Texas 78682."
Facebook:
"On information and belief, [Facebook] has a regular and established place of business in this judicial district at 9420 Research Blvd, Austin, Texas 78759."
"Facebook resides in the Western District of Texas by maintaining regular and established places of business at 300 W 6th Street, Austin, Texas, 78701 and 607 W 3rd Street, Austin, Texas 78701."
Google/YouTube:
"Google LLC ('Google') is a Delaware corporation with a physical address at 500 West 2nd Street, Austin, Texas 78701."
"YouTube, LLC ('YouTube') is wholly owned by Google and is a Delaware limited liability company with a physical address at 3600 Presidential Boulevard, Austin, Texas 78719."
HP:
"[S]ince at least as early as 2016, [Hewlett Packard Inc.] has had an established place of business in this judicial district with a physical office at 3800 Quick Hill Rd. #100, Austin, TX 78728."
"On information and belief, [Hewlett Packard Enterprise Company] formally registered to do business in the State of Texas SOS file Number 0802175187 in March 2015 and has a place of business at 14231 Tandem Blvd, Austin, Texas 78728."
Huawei:
"Upon information and belief, Defendant Huawei Technologies USA Inc. is a corporation organized and existing under the laws of Texas that maintains an established place of business at 2391 NE Interstate 410 Loop, San Antonio, TX 78217."
"On information and belief, Defendant Huawei Device USA, Inc., is a Texas corporation with a principal place of business located at 5700 Tennyson Parkway, Suite 600, Plano, Texas 75024."
Intel:
"On information and belief, since April 1989, Intel has been registered to do business in the State of Texas under Texas Taxpayer Number 19416727436 and has places of business at 1300 S Mopac Expressway, Austin, Texas 78746; 6500 River Place Blvd, Bldg 7, Austin, Texas 78730; and 5113 Southwest Parkway, Austin, Texas 78735 (collectively, 'Intel Austin Offices')."
Juniper:
"Defendant Juniper Networks, Inc. is a corporation organized and existing under the laws of Delaware that maintains an established place of business at 1120 S Capital of Texas Hwy #120, Austin, TX."
LG Electronics
"LG has regular and established places of businesses in this District, including at 9420 Research Blvd, Austin, Texas 78759. LG also has several service repair locations in this District."
"Microsoft has a regular and established place of business in this District. Microsoft maintains corporate offices in this District, including at 10900 Stonelake Boulevard, Suite 225, Austin, TX, USA 78759 and Concord Park II, 401 East Sonterra Boulevard, Suite 300, San Antonio, TX, USA 78258. In addition, on information and belief, Microsoft has not disputed that venue is proper in this District in cases filed against it in this District."
Nvidia:
"On information and belief, NVIDIA has a regional office in this District, including at least at 11001 Lakeline Blvd., Building 2, Suite 100, Austin, TX 78717."
"On information and belief, Samsung Electronics America, Inc. conducts business operations in the Western District of Texas in its facilities at 12100 Samsung Blvd., Austin, Texas 78754. Samsung Electronics America, Inc. has offices in the Western District of Texas where it sells and/or markets its products, including an office in Austin, Texas."
"8. Tesla maintains a permanent physical presence within this District. For example, it maintains galleries at (1) 12845 Research Boulevard, Austin, Texas 78759; (2) 11600 Century Oaks Terrace, Austin, Texas 78758; and (3) 23011 IH-10 West, San Antonio, Texas 78257. Tesla also maintains service centers in this District, including at 12845 Research Boulevard, Austin, Texas 78759; 23011 IH-10 West, San Antonio, Texas 78257; and 28 Walter Jones, Suite C, El Paso, Texas. Tesla conducts business from at least these locations. Tesla employs employees who work at Tesla’s locations in this District.
"Austin, TX 78759; (2) Austin, TX Supercharger, 6406 N. Interstate 35 Frontage Road, Austin, TX 78752; (3) El Paso Supercharger, 6401 South Desert Boulevard, El Paso, Texas 79932; (4) Fort Stockton, TX Supercharger, 2571 North Front Street, Fort Stockton, Texas 79735; (5) Giddings, TX Supercharger, 3025 East Austin Street, Giddings, Texas 78942; (6) Junction Supercharger, 2415 N Main Street, Junction, Texas 76849; (7) Leon Springs, TX Supercharger, 24165 I-10 #300, San Antonio, Texas 78357; (8) Midland Supercharger, 3001 Antelope Trail, Midland, Texas 79706; (9) Pecos, TX Supercharger, 100 East Pinehurst Street, Pecos, Texas 79772; (10) San Antonio, TX Supercharger, 11745 I-10, San Antonio, Texas 78230; (11) San Marcos, TX Supercharger, 3939 Interstate 35, San Marcos, Texas 78666; (12) Van Horn Supercharger, 1921 Frontage Rd, Van Horn, Texas 79855; and (13) Waco Supercharger, 701 Interstate 35, Bellmead, Texas 76705. Upon information and belief, Tesla also has eight (8) Supercharging stations “coming soon” to this District.
"b. Tesla’s locations in this District, including at least those identified in paragraphs 8 and 9 above, are regular and established. Tesla features commercial signage at each location identifying the location as a regular and established place of Tesla’s business.
"c. Tesla’s locations in this District, including at least those identified in paragraphs 8 and 9 above, are places of business of Tesla. Tesla offers its own products and services for sale at its locations.
"d. Tesla’s locations in this District, including at least those identified in paragraphs 8 and 9 above, are physical, geographical locations in this District from which Tesla carries out its business.
"e. Tesla employees work at Tesla’s locations, including at least those identified in paragraphs 8 and 9 above. Upon information and belief, these Tesla employees are regularly and physically present at Tesla’s locations, including at least those identified in paragraphs 8 and 9 above, during business hours and they are conducting Tesla’s business while working there.
"11. Further, upon information and belief, Tesla trains future employees (specifically, electric vehicle technicians) in this District at Tesla’s START Training Program housed at Texas State Technical College in Waco, Texas. Tesla provides the instructor, training equipment, vehicles, tools, and curriculum for the program. Students are employed by Tesla as hourly interns, and following completion of the program they are placed in a Tesla Service Center in North America."
Uber:
"Uber has regular and established places of business in this District, including at 201 East 3rd St., Austin, TX 78701; 507 Calles St., #120, Austin, TX 78702; 10842 Potranco Rd. #112, San Antonio, TX 78251 and 121 Interpark Blvd. #501, San Antonio, TX 78216."
"[Uber has] actively advertised to employ (and in fact hired) residents within the District as drivers."
Western Digital:
"On information and belief, Defendant Western Digital Technologies is a Delaware corporation with a principal place of business at 7501 N. Capital of Texas Highway, Suite A 100, Austin, TX 78731 and 9442 N. Capital of Texas Highway, Austin, TX 78759."
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