Chapter 13 Outline

JurisdictionUnited States

Chapter 13

Jurisdiction and Procedure


§13.01 U.S. District Courts

[A] Subject Matter Jurisdiction over Patent Cases
[1] Statutory Basis: 28 U.S.C. §1338
[2] "Arising Under" Jurisdiction
[a] "Creation" Test
[b] "Serious Federal Interest" Test
[i] Christianson (U.S. 1988)
[ii] Gunn (U.S. 2013)
[iii] Post- Gunn Federal Circuit Decisions on "Substantial Question" of Patent Law
[B] Personal Jurisdiction
[1] Generally
[2] Specific Personal Jurisdiction
[a] Stream-of-Commerce Theory
[b] Sending Enforcement Letters
[i] Traditional rule: Red Wing (1998): No Personal Jurisdiction from Solely Informing Party in the Forum of Suspected Infringement
[ii] Trimble (2021): More Extensive Communications Will Give Rise to Personal Jurisdiction
[C] Venue
[1] Patent-Specific Statute: 28 U.S.C. §1400(b)
[2] Fourco Glass (U.S. 1957)
[3] V.E. Holding (Fed. Cir. 1990) Greatly Expands Patent Venue
[4] TC Heartland (U.S. 2017) Drastically Narrows Patent Venue
[5] Suing Where Accused Infringer Has "Committed Acts of Infringement" and Has a "Regular and Established Place of Business"
[a] In re Cordis (Fed. Cir. 1985)
[b] Representative Post-TC Heartland (U.S. 2017) District Court Decisions
[c] Post- TC Heartland (U.S. 2017) Federal Circuit Decisions
[i] Cray (2017)
[ii] ZTE (2018)
[d] Waiver or Forfeiture of Improper Venue Defense
[6] Venue for Infringement Actions Against Foreign Corporations
[7] Venue for Patent-Related Actions Not Asserting Infringement
[a] Correction of Inventorship
[b] Declaratory Judgment Actions
[8] Choice of Law and Burden of Proof
[a] Federal Circuit Law Governs
[b] Burden of Proof on Plaintiff
[9] Suing Where Accused Infringer "Resides"
[D] Pleading Requirements
[1] Elimination of Form Pleading for Direct Infringement (2015)
[2] Bill of Lading (Fed. Cir. 2012)
[3] Pleading Joint Infringement
[E] Evidentiary Privileges
[1] Attorney-Client Privilege
[2] Patent Agent-Client Privilege

§13.02 U.S. International Trade Commission

§13.03 U.S. Court of Appeals for the Federal Circuit

[A] Subject Matter-Specific Appellate Jurisdiction
[B] Critiques of the Federal Circuit
[C] Standards of Review
[1] Appeals from Federal District Courts
[a] Jury Trial
[b] Bench Trial
[2] Appeals from the International Trade Commission
[3] Appeals from the U.S.

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