Last week, the District of Delaware denied Apple’s motion to dismiss for improper venue in Prowire LLC v. Apple Inc., 1-17-cv-00223 (D. Del. Aug. 9, 2017) (Order, Judge Mark A. Kearney, Dkt. 46). Apple argued that the existence of just one store in the district did not meet the “regular and established place of business” test required to establish venue under the second prong of 28 U.S.C. § 1400(b), but the court disagreed.
In its complaint, Prowire alleged that Apple maintains “one or more retail stores in this District where it sells consumer products containing the alleged infringing” products. Apple did not dispute the allegation, but argued that one retail store is not enough to establish a “permanent and continuous presence” that qualifies as a “regular and established place of business” according to the Federal Circuit’s ruling in In re Cordis, 769 F.2d 733 (1985). The court rejected Apple’s position, noting that Apple “sells the alleged infringing technology to consumers on a daily basis.”
The District of Delaware is just the latest court to weigh in on what constitutes a “regular and established place of business.” Please see our previous posts regarding how other courts are dealing with the issue: What is a “regular and established place of business?”, July 19, 2017 - TC Heartland Weekly Update, July 26, 2017 – TC Heartland Weekly Update, Gilead and Alliance of Tech Companies Press Federal Circuit to Clarify Meaning of “Regular and Established Place of Business”, August 2, 2017 – TC Heartland Weekly Update, CEO’S Private Residence Is Not a “Regular and Established Place of Business”; Plaintiff Must Identify “Infringing Activity”, and August 10, 2017 – TC Heartland Weekly Update. We will continue to monitor the “regular and established place of business” issue and all other related TC Heartland venue issues.