Because Smartflash alleges no facts to support the knowledge requirement of its indirect infringement claims, the Court should dismiss the claims. In re Bill of Lading, 681 F.3d at 1336- 37. CONCLUSION Defendants respectfully request that this Court hold that Section 1400(b) is the exclusive venue provision for patent actions and is not enlarged by Section 1391, and, accordingly, dismiss this action for improper venue. If the Court finds Smartflash’s claims proper under Rule 12(b)(3), however, Defendants request that the Court dismiss Smartflash’s indirect infringement claims pursuant to Rule 12(b)(6) for failure to state any facts supporting either actual or con- structive knowledge of the asserted patents by Amazon or Audible.

Because venue in patent cases is an area “otherwise provided by law,” 28 U.S.C. § 1391(a), it may not be expanded by reference to the corporate residency definition in § 1391(c)(2). Section 1400(b) was not amended by the Venue Clarification Act and is the same today as it was when the Supreme Court handed down Fourco in 1957. The Supreme Court’s holding in Fourco, that “28 U.S.C. § 1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391(c),” id. at 229, is therefore controlling law on venue in patent infringement cases. F. Venue Over Facebook Is Improper In this District

In the alternative, the source of a “substantial part” of the employment-related decisions about which Plaintiff complains is Mr. Fowler’s employment in the Northern District of Texas. Consequently, venue cannot properly lie in the Southern District of New York pursuant to § 1391(b)(3). B. IF THE AMENDED COMPLAINT IS NOT DISMISSED, THIS CASE SHOULD BE TRANSFERRED TO A PROPER VENUE

See supra Section IV(A).11 28 U.S.C. § 1391(c)(2) demands a result that is the same as that articulated with respect to 28 U..C. §§ 1391(c)(1) and (c)(3). In particular, 28 U.S.C. § 1391(c)(2) leads to the conclusion that venue is proper in New Jersey as “a substantial part of the events giving rise to the claim” have been occurring in New Jersey. 28 U.S.C. § 1391(c)(2). This means that venue is proper at least where the infringement of Honeywell’s patent occurred.

See supra Section IV(A).11 28 U.S.C. § 1391(c)(2) demands a result that is the same as that articulated with respect to 28 U..C. §§ 1391(c)(1) and (c)(3). In particular, 28 U.S.C. § 1391(c)(2) leads to the conclusion that venue is proper in New Jersey as “a substantial part of the events giving rise to the claim” have been occurring in New Jersey. 28 U.S.C. § 1391(c)(2). This means that venue is proper at least where the infringement of Honeywell’s patent occurred.

(emphasis added). In this case, even if the Court had personal jurisdiction over either of the Defendants, Section 1391(a)(3) does not provide a basis Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 13 of 26 11 for venue because there is another federal district in which this action may be brought. Namely, the United States District Court for the Eastern District of Virginia.

11 The U.S. Supreme Court has granted certiorari as to the question of whether §1400(b) is the exclusive venue statute for patent infringement actions or whether it is supplemented by § 1391.

As such, Musket is subject to personal jurisdiction in these states and resides in these districts. Finally, venue is proper in these districts as Musket resides in these districts and because, as described herein, both are “judicial district[s] in which a substantial part of the events . . . giving rise to the claim occurred” under 28 U.S.C. § 1391(b)(1), (2). Thus, venue is appropriate under this analysis or under a maritime jurisdiction analysis.

(“Simply stated, we find no rational basis for treating [resident or non-resident] aliens and citizens differently for venue purposes in the context” of jeopardy tax assessments.). The legislative purpose of enacting §1391(e) was to “provide nationwide venue for the convenience of individual plaintiffs” for actions against federal officials, federal agencies, or the federal government.

Mr. Kania is a Montana resident with no continuous connection to Texas, and no specific connection to Texas that gives rise to any of Thermo-Ply’s claims. Finally, even if this Court were to decide to exercise personal jurisdiction over Mr. Kania, this Court should dismiss or transfer Thermo-Ply’s claims against Mr. Kania for improper venue under 28 U.S.C. § 1391, or transfer them to the Southern District of Ohio pursuant to 28 U.S.C. § 1404 for the convenience of the parties and the preservation of judicial resources. Respectfully submitted /s/ Deron R. Dacus Deron R. Dacus Texas State Bar No. 00790553 The Dacus Firm 821 ESE Loop 323, Suite 430 Tyler, TX 75701 (903) 705-1117 ddacus@dacusfirm.com OF COUNSEL: T. Earl LeVere Ohio State Bar No. 0063515 Ice Miller LLP 250 West Street Columbus, Ohio 43215 (614) 462-1095 earl.levere@icemiller.com Case 1:13-cv-00652-RC Document 18 Filed 12/23/13 Page 20 of 21 PageID #: 355 4500025v6 21 Jana E. Harris, Ph.D.