Finding that the U.S. Supreme Court “has yet to reach a consensus on the proper articulation of the stream-of-commerce theory” of personal jurisdiction to assess whether a court has jurisdiction over a non-resident defendant in a patent infringement suit, the Federal Circuit Court of Appeals has applied its own theory, which assesses the pleadings and evidence under “any articulation of the stream-of-commerce theory,” and has determined that a district court in Wyoming properly dismissed two patent infringement lawsuits for lack of jurisdiction. AFTG-TG, LLC v. Nuvoton Tech. Corp., Nos. 2011-1306 and -1307 (Fed. Cir., decided August 24, 2012). In this case, the defendants either sold their products to various companies that in turn sold them to consumers in Wyoming or made “drop shipments” to Wyoming addresses at the instruction of third-party resellers that were also not Wyoming residents. The district court concluded, and the Federal Circuit agreed, that the complaints failed to alleged sufficient facts to demonstrate minimum contacts with Wyoming.  

Chief Judge Randall Rader concurred in the result but wrote separately to contend that Justice Stephen Breyer’s holding, the narrowest of the plurality opinions in McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), provides a more solid approach than a simple recitation of the stream-of-commerce concept. That approach requires “something more” of a defendant than simply placing a product into the stream of commerce and acknowledges the defendant’s intent and awareness. Judge Rader contended that the majority’s reliance on a 1994 Federal Circuit ruling “is now shaky precedent to the extent that it runs counter to the McIntyre decision.”