t in the Southern District of Illinois, claiming that GTT violated antitrust laws by improperly interfering with competitive bidding on public contracts and engaging in illegal tying. GTT did not transact business in the Southern District of Illinois, although a few of its devices had been installed at intersections in the district and it had made six direct sales in the district over a four-year period. The public bids referred to in the complaint occurred in the Northern District of Illinois. Nevertheless, KME sued GTT in the Southern District of Illinois, alleging violations of the Sherman and Clayton Acts.[137] KME accomplished personal jurisdiction over GTT in the Southern District relying on the service provision of Clayton Act § 12,[138] which provides special (but non-exclusive) rules for venue and service of process in antitrust cases against corporations. It did not rely on the Clayton Act § 12's venue provisions, however, it instead relyied on the general venue provision of 28 U.S.C. § 1391.[139]The district court dismissed the action for lack of venue because GTT did not have sufficient contacts with the district as it did not reside in the Southern District of Illinois and none of the events took place there. On appeal, KME argued that GTT had sufficient contacts to satisfy Section 1391 and that it was entitled to rely on Section 1391 even though it had relied on Clayton Act § 12 for service of process. KME claimed that it was appropriate to use Clayton Act § 12's nationwide service of process provision, but not Clayton Act § 12's venue provision. Instead, KME relied on Section 1391 for venue. Presumably under this interpretation, the reverse would be possible: service under Fed. R. Civ. Pro. 4(k)(1)(A) and Clayton Act § 12's venue provision. In other words, it could mix and match among the service of process and venue provisions of Clayton Act § 12 and Section 1391.À La Carte or Fixed Menus An antitrust action, like all civil actions, is commenced by serving a summo

Venue, which describes where a lawsuit may be commenced and maintained, is governed by federal statute 28 U.S.C. section 1391 (“Section 1391”). Subsection (b) of Section 1391 provides the following:A civil action may be brought in: (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

The District of Delaware denied the motion to transfer, and TC Heartland sought a writ of mandamus from the Federal Circuit. The Federal Circuit denied the petition for mandamus, relying on VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed. Cir. 1990) to hold that venue was proper in the District of Delaware under its interpretation of the patent and general venue statutes, 28 U.S.C. § 1400(b) and 28 U.S.C. § 1391, respectively. Section 1400(b) provides for venue in patent infringement cases (1) where the defendant resides; or (2) where the defendant has committed acts of infringement and has a regular and established place of business.

The District of Delaware denied the motion to transfer, and TC Heartland sought a writ of mandamus from the Federal Circuit. The Federal Circuit denied the petition for mandamus, relying on VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed. Cir. 1990) to hold that venue was proper in the District of Delaware under its interpretation of the patent and general venue statutes, 28 U.S.C. §1400(b) and 28 U.S.C. §1391, respectively. Section 1400(b) provides for venue in patent infringement cases (1) where the defendant resides; or (2) where the defendant has committed acts of infringement and has a regular and established place of business.

That all came to a screeching halt on May 22, 2017, when the U.S. Supreme Court released its decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, limiting patent venue to the judicial district where the defendant (1) is incorporated, or (2) has committed acts of infringement and has a regular and established place of business.The patent venue statute, 28 U.S.C. § 1400(b), states that a patent infringement lawsuit may be brought in the judicial district “where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” However, the general venue statute, 28 U.S.C. § 1391(c), states that “for purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction.” In its 1990 VE Holding Corp. holding, the Court of Appeals for the Federal Circuit found that because § 1391(c) applies “for purposes of venue under this chapter,” the definition of corporate residence applies to the patent venue statute.

The patent venue statute, 28 U.S.C. §1400(b), states that a patent infringement lawsuit may be brought in the judicial district “where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” However, the general venue statute, 28 U.S.C. §1391(c), states that “for purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction.” In its 1990 VE Holding Corp. holding, the Court of Appeals for the Federal Circuit found that because §1391(c) applies “for purposes of venue under this chapter,” the definition of corporate residence applies to the patent venue statute.

It therefore concluded that a domestic corporation “resides” only in its state of incorporation for purposes of the patent venue statute. In doing so, the Fourco court rejected the argument that 28 U.S.C. §1400(b) incorporated the broader definition of corporate “residence” contained in the general venue statute, 28 U.S.C. §1391(c). Congress thereafter amended the general venue statute in 1988 to provide that “[f]or purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.”

It therefore concluded that a domestic corporation “resides” only in its state of incorporation for purposes of the patent venue statute. In doing so, the Fourco court rejected the argument that 28 U.S.C. §1400(b) incorporated the broader definition of corporate “residence” contained in the general venue statute, 28 U.S.C. §1391(c). Congress thereafter amended the general venue statute in 1988 to provide that “[f]or purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.”

On the pharmaceutical side, the current venue rules permit a majority of Hatch-Waxman cases to be filed in the Districts of Delaware and New Jersey, which have gained experience in even-handedly addressing these cases. Thus, while the question presented in TC Heartland is one of statutory construction, this legal question is presented against a varied backdrop of seeming abuses of the litigation process by non-practicing entities through forum shopping on the one hand, and a delicate balance resulting in efficiencies for resolution of Hatch-Waxman cases between branded and generic drug manufacturers on the other.The legal question revolves around two statutes, 28 U.S.C. §§ 1391(c) and 1400(b), and two cases, Fourco and VE Holding.[2] Section 1400(b) authorizes patent suits to be brought in the “judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”

p. at 4 (citing Act of Mar. 3, 1897, ch. 395, 29 Stat. 695). The 1897 patent venue statute, similarly to the present patent venue statute, permitted suit where the defendant was an “inhabitant,” or where the defendant both maintained a “regular and established place of business” and committed an act of infringement. Slip op. at 4 (citing 29 Stat. 695). Under 1897 law, a corporation “inhabited” only the state of its incorporation. Id.In 1942, and again in 1957, the Supreme Court considered virtually the same issue it considered in TC Heartland. In Stonite Products Co. v. Melvin Lloyd Co., 315 U.S. 561 (1942), the Court rejected a plaintiff’s reliance on the then governing general venue statute, holding that it did not modify the narrower, exclusive patent venue statute. Slip op. at 4. In 1948, Congress recodified the patent venue statute as 28 U.S.C. § 1400(b), changing only “inhabit[s]” to its synonym “resides.” Slip op. at 5. Congress simultaneously enacted the general venue statute, 28 U.S.C. § 1391, permitting suit “in all actions” against a corporation “in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.” Id. In view of the amendment to the general venue statute, the Second Circuit held that the definition of “residence” broadened the patent venue statute as well as other sections of the venue chapter of the statute. Id. The Supreme Court reversed the Second Circuit in Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), reasoning, as it did in Stonite, that §1400(b) exclusively controlled venue in patent infringement suits, despite the reference to “all actions” in § 1391(c).In 1988, Congress again amended the general venue statute, § 1391(c), to provide that “[f]or purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to