28 USC 1400(b) "regular and established place of business" - remote work

[RICK NEIFELD]

            In re Monolithic Power Systems, Inc., 2022-153 (Fed. Cir. 9/30/2022), the Federal Circuit denied a writ of mandamus.

            This is a decision on a petition from W.D. Tex. case 6:21-cv-00655-ADA. Monolithic petitioned for a writ of mandamus to transfer from W.D. Tex. A majority consisting of Judges Chen and Stark, denied the petition.  Judge Lourie dissented.

            Legal Issue: 28 USC 1400(b) "regular and established place of business", residence of employees and remote work.

 

            Judge Lourie, in dissent, stated:

 

            I respectfully dissent from the majority’s decision to

deny mandamus. In my view, it is clear that venue is im-

proper in the Western District of Texas because Monolithic

Power Systems, Inc. does not “reside[]” there and the

homes of Monolithic’s four employees in the Western Dis-

trict do not constitute Monolithic’s “regular and estab-

lished place of business.” 28 U.S.C. § 1400(b). Indeed, we

held venue to be improper under materially similar circum-

stances in In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017)

and Celgene Corp. v. Mylan Pharms. Inc., 17 F.4th 1111

(Fed. Cir. 2021). As in those cases, the facts here “merely

show that there exists within the district a physical loca-

tion where . . . employee[s] of the defendant carr[y] on cer-

tain work for [their] employer,” which is insufficient under

§ 1400(b). Cray, 871 F.3d at 1366.

 

            ... The district court’s erro-

neous ruling threatens to bring confusion to the law

relating to where a patent infringement suit can properly

be brought based on the location of employee homes and to

erode the clear statutory requirement of a regular and es-

tablished place of business. Given the increased

prevalence of remote work, I think immediate review by

way of mandamus would be important to maintain uni-

formity of the court’s clear precedent.

 

In contrast, the majority opinion stated:

 

            We are not persuaded that the district court’s venue

ruling implicates a “basic, unsettled, recurring legal issue[]

over which there is considerable litigation producing dis-

parate results,” or similar circumstances that might war-

rant mandamus. Micron, 875 F.3d at 1095. The court

analyzed Monolithic’s arguments under the factors estab-

lished in Cray for determining whether, for purposes of

venue, a defendant has sufficiently ratified a place of busi-

ness to make it its own. And it did so based on the specific

circumstances surrounding Monolithic’s history of solicit-

ing employees to work in the Western District to support

Monolithic’s local OEM customers in that district and the

extent and type of laboratory equipment and product main-

tained in the homes of those employees.

 

 

and

 

            The dissent may well be correct that the issue of imput-

ing employee homes to a defendant for purposes of venue

will become an issue of greater concern given the shift to

remote work. But, in our view, at present, the district

court’s ruling does not involve the type of broad, fundamen-

tal, and recurring legal question or usurpation of judicial

power that might warrant immediate mandamus review.