Patent Venue Discovery

In the aftermath of the Supreme Court’s TC Heartland decision and In re Cray from the Federal Circuit, litigants are attempting to determine the boundaries of proper and improper venue for patent infringement cases. This, of course, leads to disputes concerning what information and facts are relevant and what are not. As courts wrestle with these issues, it will be interesting to see if the boundaries of discovery are bright and uniform across all patent cases, or if they become at some level case specific. In a recent decision from the Eastern District of Texas – Better Mouse Co., LLC v. Razer (December 12, 2017) – the court had to resolve a discovery battle of permissible deposition topics. In that case, the court concluded that whether the defendant owned or leased a place of business in the district was relevant, but whether a third party that provides “services” to the defendant has a place in the district is not. (This raises an interesting issue – what if the third party provides services on behalf of and under the name of the defendant from the third party’s place in the district?). Employees residing and working in the district was fair game; however, information regarding anyone that “provides services” to the defendant was too broad. Discovery into locations of retail stores not owned or leased by the defendant was also overbroad in this case.

By John T. Polasek

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