1. Regular and Established Place of Business
Michael Sacksteder
Chair, Patent Litigation Group
Fenwick & West LLP

2. Chair, Patent Litigation Group
Regular and Established Place of Business or “Be It Ever So Humble, There’s No Place Like Home”
Michael Sacksteder
Chair, Patent Litigation Group
Fenwick & West LLP

3. Patent Venue Statute
28 U.S.C. § 1400(b): Any civil action for patent infringement 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.

6. Raytheon v. Cray Cray had no facilities in E.D. Texas
No sales or customers in E.D. Texas
One former Cray sales employee worked from home in E.D. Texas at time of complaint
Marketed supercomputers to oil and gas customers outside the district
All offers to sell generated by configuration team in Cray’s Minnesota and Washington offices
Listed personal telephone number on work s
Systems designed in Minnesota and Washington, and manufactured in Wisconsin
Judge Gilstrap found “regular and established place of business” under Cordis

7. “Factors Pertaining to a Regular and Established Place of Business in the Modern Era”
Physical presence
Defendant’s internal or external representations re presence in the district
The extent to which a defendant derives benefits from its presence in the district
“Including but not limited to sales revenue”
Targeted interactions with the district
Localized customer support
Ongoing contractual relationships
Targeted marketing efforts

8. Cray Mandamus Petition

9. Full Disclosure…

10. In re Cray “Place of business” means a place “Regular” “Established”
A “physical, geographical location in the district from which the business of the defendant is carried out”
A “a place of the defendant, not solely a place of the defendant’s employee”
“Regular”
“Sporadic activity cannot create venue.”
Operate in a “steady, uniform, orderly, and methodical” manner 
“Established”
Stability, controlled by defendant
“[I]f an employee can move his or her home out of the district at his or her own instigation, without the approval of the defendant, that would cut against the employee’s home being considered a place of business of the defendant.”
Summary
“[T]he court must identify a physical place, of business, of the defendant.”
(Commas in original)

11. In re Cray “Place of business” means a place “Regular” “Established”
A “physical, geographical location in the district from which the business of the defendant is carried out”
A “a place of the defendant, not solely a place of the defendant’s employee”
“Regular”
“Sporadic activity cannot create venue.”
Operate in a “steady, uniform, orderly, and methodical” manner 
“Established”
Stability, controlled by defendant
“[I]f an employee can move his or her home out of the district at his or her own instigation, without the approval of the defendant, that would cut against the employee’s home being considered a place of business of the defendant.”
Summary
“[T]he court must identify a physical place, of business, of the defendant.”
(Commas in original)

12. In re Cray “Place of business” means a place “Regular” “Established”
A “physical, geographical location in the district from which the business of the defendant is carried out”
A “a place of the defendant, not solely a place of the defendant’s employee”
“Regular”
“Sporadic activity cannot create venue.”
Operate in a “steady, uniform, orderly, and methodical” manner 
“Established”
Stability, controlled by defendant
“[I]f an employee can move his or her home out of the district at his or her own instigation, without the approval of the defendant, that would cut against the employee’s home being considered a place of business of the defendant.”
Summary
“[T]he court must identify a physical place, of business, of the defendant.”
(Commas in original)

13. In re Cray “Place of business” means a place “Regular” “Established”
A “physical, geographical location in the district from which the business of the defendant is carried out”
A “a place of the defendant, not solely a place of the defendant’s employee”
“Regular”
“Sporadic activity cannot create venue.”
Operate in a “steady, uniform, orderly, and methodical” manner 
“Established”
Stability, controlled by defendant
“[I]f an employee can move his or her home out of the district at his or her own instigation, without the approval of the defendant, that would cut against the employee’s home being considered a place of business of the defendant.”
Summary
“[T]he court must identify a physical place, of business, of the defendant.”
(Commas in original)

14. Application of Cray: Uniloc v. Nutanix
E.D. Texas, Judge Gilstrap
19 Nutanix employees worked from home in district
“The Federal Circuit’s holding in Cray is particularly instructive given that the underlying facts there are similar to those before the Court in this case.”
“While there is a fine distinction between Cordis and Cray, the case before this Court falls closer on this spectrum to Cray than it does to Cordis.”
None of employees’ residences are “places of the defendant”
Dismissed case pursuant to 28 U.S.C. §1406(a)
Declined plaintiff’s request to transfer to W.D. Texas instead

15. ED Texas is More than the “Piney Woods”
Plano

17. Alternative REPBs Going Forward
Bank branches
Retail locations
Consumer electronics stores (sue retailer instead of manufacturer)