Patent Venue After TC Heartland: Offices, Remote Employees, and Servers
Patent cases do not use the same venue rules that apply to most federal civil lawsuits. A company may sell products nationwide, advertise in Florida, employ people who work remotely from Florida, and still have a serious argument that a particular Florida federal district is not a proper venue for a patent-infringement suit.
The starting point is 28 U.S.C. § 1400(b). For a domestic corporate defendant, the statute generally supplies two paths: suit where the defendant “resides,” or suit where the defendant both committed acts of infringement and has a “regular and established place of business.” The Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Group Brands LLC and the Federal Circuit’s later venue cases have made each part of that test matter.
This is not merely a pleading technicality. Venue can determine where witnesses travel, which local rules govern the case, how quickly a dispute proceeds, and whether an early motion causes months of avoidable expense. Patent owners should analyze venue before filing. Accused infringers should analyze it before answering or otherwise taking steps that could affect the defense.
Section 1400(b) Creates Two Different Venue Paths
The patent venue statute permits a patent-infringement action in a judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.
Those are alternatives, not interchangeable concepts. A plaintiff relying on residence does not also have to prove an in-district place of business. A plaintiff relying on the second path must establish both the infringement-related requirement and the place-of-business requirement.
That distinction is one reason general statements such as “the company does business nationwide” or “the defendant has customers in the state” are not enough. Personal jurisdiction, general federal venue, patent venue, and discretionary transfer address different questions.
TC Heartland Narrowed Where a Domestic Corporation “Resides”
In 2017, the Supreme Court held in TC Heartland that, for purposes of § 1400(b), a domestic corporation “resides” only in its state of incorporation. The Court rejected the argument that the broader corporate-residence definition in the general venue statute expanded patent venue.
That holding changed the practical map for patent litigation. A Delaware corporation does not “reside” in every district where it is subject to personal jurisdiction. If a patent owner wants to sue that corporation outside Delaware, the second branch of § 1400(b) generally becomes the focus: were there acts of infringement in the district, and does the defendant have a regular and established place of business there?
The rule is especially important for companies incorporated in one state but headquartered, staffed, or commercially active elsewhere. The place where the company’s executives sit may be important to a transfer analysis, but it is not automatically the company’s residence for § 1400(b).
In re Cray Supplies the Core “Place of Business” Test
Later in 2017, the Federal Circuit addressed what counts as a “regular and established place of business” in In re Cray Inc. The court identified three requirements:
- there must be a physical place in the district;
- the place must be regular and established; and
- it must be a place of the defendant.
The first requirement excludes a purely virtual presence. A website, phone number, sales territory, or electronic connection is not by itself a physical geographical location from which the defendant’s business is carried out.
The second requirement focuses on stability and permanence. A transient location used for a particular transaction is different from a business location maintained for a meaningful period. If an employee can move a home office out of the district whenever the employee chooses, without the company’s approval, that fact can cut against treating the home as an established business location of the company.
The third requirement is often the most important. The place must belong, in a meaningful business sense, to the defendant—not merely to an employee who happens to work there. Cray explained that courts may consider whether the company owns or leases the location, controls it, requires an employee to live there, stores inventory or materials there for distribution, publicly holds the address out as its business location, or otherwise ratifies the place as its own.
No single fact controls. The question remains tied to the statutory language: is there an actual, regular and established place of the defendant’s business in the district?
A Remote Employee’s Home Is Not Automatically a Patent Venue
Remote work has made that third part of Cray more important, not less.
In Cray, an employee worked from his home in the Eastern District of Texas, but the company did not own or lease the home, did not require the employee to live in the district, did not store product or literature there, and did not publicly present the home as a company office. The Federal Circuit held that those facts did not establish a regular and established place of business of Cray.
That does not mean a home office can never qualify. The Federal Circuit expressly recognized that a business may operate from a home. The issue is whether the company has established or ratified that particular place as a place of its own business.
The court’s 2022 order in In re Monolithic Power Systems, Inc. illustrates the factual nuance. The district court had relied on a history of recruiting employees in the Western District of Texas to support local customers and on company equipment and product kept in employees’ homes. The Federal Circuit denied mandamus, concluding that the company had not shown a clear and indisputable right to that extraordinary relief.
But that order should not be overstated. The panel expressly did not decide the ultimate merits of the venue issue. It is therefore not a blanket rule that a remote employee’s home creates patent venue whenever the employee has company equipment. The proper analysis remains fact-specific under Cray.
Servers and Hardware Do Not Necessarily Create a Place of Business
A different venue question arises when the defendant has physical equipment in a district but no office or employees there.
In In re Google LLC, the Federal Circuit considered Google Global Cache servers located at facilities operated by internet service providers in the Eastern District of Texas. The court held that venue was improper because Google lacked a regular and established place of business there: no Google employee or qualifying agent regularly conducted Google’s business at the alleged place.
The decision is useful for cloud, data-center, telecom, SaaS, and platform businesses. Physical hardware in a district may matter, but hardware alone does not automatically become a business location under § 1400(b). The relationship between the defendant, the location, and the people or agents conducting the defendant’s business remains critical.
The Federal Circuit also carefully left open broader questions about whether a machine could ever function as an “agent” for venue purposes. The safer takeaway is narrower: a plaintiff should not assume that servers sitting in a third party’s facility establish patent venue merely because they are physically present and commercially useful.
The Facts That Usually Deserve Early Venue Discovery
When venue depends on the second branch of § 1400(b), the useful evidence often looks more like an operations audit than a traditional jurisdictional analysis. The following facts can materially change the result:
| Fact | Why it matters |
|---|---|
| Who owns, leases, or controls the location? | Control can help show that the place is the defendant’s rather than merely an employee’s or third party’s. |
| Is an employee required to live or work in the district? | A location chosen solely by the employee looks different from a company-required in-district presence. |
| What equipment, inventory, samples, or records are kept there? | Storage and distribution functions may show that business is actually being conducted from the place. |
| Does the company list or advertise the address? | Publicly holding a location out as an office can support ratification, though labels alone are not enough. |
| What happens if the employee leaves? | If the business location disappears with the employee, that may weigh against treating it as an established place of the defendant. |
For a patent owner, this information can affect whether to file immediately, investigate further, or choose another forum. For an accused infringer, the same facts can determine whether an early Rule 12(b)(3) or transfer motion deserves priority.
Proper Venue and Convenient Venue Are Different Questions
Even when patent venue is proper under § 1400(b), the case can still be transferred. 28 U.S.C. § 1404(a) allows a district court to transfer a civil action for the convenience of parties and witnesses and in the interest of justice to a district where the case could have been brought or to a district to which all parties consent.
That means patent litigants should run two separate analyses. First: is the chosen district legally permissible under § 1400(b)? Second: even if it is, is another district sufficiently more convenient to justify transfer?
The difference matters in practice. A defendant may lose an improper-venue argument yet still pursue transfer based on witnesses, sources of proof, local interests, judicial administration, or other factors governed by the applicable regional circuit. Patent owners should evaluate both questions before filing rather than treating a technically proper forum as immune from transfer.
Tucker Law’s patent litigation practice evaluates these threshold issues alongside infringement, validity, damages, and the business objective of the case. The firm also serves as Florida patent litigation local counsel for out-of-state firms handling patent disputes in Florida federal courts.
Foreign Defendants Require a Separate Venue Analysis
TC Heartland addressed domestic corporations. A defendant that is not resident in the United States is subject to a different venue rule. 28 U.S.C. § 1391(c)(3) provides that a defendant not resident in the United States may be sued in any judicial district, and the Supreme Court’s earlier decision in Brunette Machine Works, Ltd. v. Kockum Industries, Inc. applied the alien-venue rule in a patent case.
That does not mean a foreign defendant’s presence cures venue as to domestic co-defendants. The statute expressly says a nonresident defendant is disregarded in determining where the action may be brought with respect to other defendants. In a multi-defendant patent case, counsel should therefore analyze each defendant rather than assuming one company’s status establishes the forum for everyone.
Florida Patent Cases Make District-Level Facts Important
Florida has three federal districts. A corporation’s activities somewhere in Florida do not automatically establish a regular and established place of business in every Florida district. The venue analysis is district-specific.
A company may, for example, have an office in Miami, a remote engineer in Orlando, customers throughout the state, and servers hosted by a third party in Jacksonville. Those facts implicate different federal districts and different venue theories. Counsel should map the actual locations and business relationships before deciding where to file.
For matters in South Florida, Tucker Law’s Southern District of Florida IP local counsel practice can coordinate local procedure with lead counsel. The firm’s broader intellectual property practice also assists patent owners and accused infringers with litigation and portfolio strategy.
Venue Should Be Investigated Before the Complaint Is Filed
Patent venue is a fact-sensitive threshold issue with consequences far beyond the caption of the case. TC Heartland limits corporate residence. Cray requires a physical, regular and established place of business of the defendant. Google shows why equipment at a third-party facility may be insufficient. And the remote-work cases demonstrate why employee homes must be evaluated based on the company’s actual relationship with the location.
For patent owners, the best time to develop that record is before filing. For accused infringers, the best time to evaluate it is immediately after service. Venue objections, transfer strategy, infringement facts, and the expected sources of proof should be considered together rather than as isolated procedural questions.
Tucker Law recently discussed a related but different issue in AML IP v. Bath & Body Works: a district court may address a Section 101 challenge even after finding venue improper. That decision reinforces the practical point that a venue dispute does not necessarily postpone merits-related risk.
If your company is evaluating where to bring a patent case, responding to a complaint filed in Florida, or coordinating with out-of-state lead counsel, contact Tucker Law to discuss the venue and litigation strategy before positions harden.
This article provides general legal information and is not legal advice. Patent venue depends on the specific defendant, district, alleged acts of infringement, business locations, procedural posture, and controlling law.
