The Federal Circuit Opens the Door to Venue Challenges after Waiver Pre-TC-Heartland

In In re: Micron Tech., Inc., No. 2017-138 (Fed. Cir. Nov. 15, 2017), the Federal Circuit vacated the district court’s order denying Micron’s venue challenge and remanded the case for further consideration. The court held that the Supreme Court’s TC Heartland decision nullified a venue-challenge waiver prior to TC Heartland.

In 2016, Harvard filed a patent-infringement case against Micron. Micron moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), but did not object to venue under Rule 12(b)(3). After the Supreme Court’s TC Heartland decision in 2017, Micron moved to dismiss or to transfer the case for improper venue under 28 U.S.C. § 1406(a). The district court denied the motion, holding that under Rule 12(h)(1)(A), Micron had waived its venue objection by omitting this available defense from an initial motion to dismiss.

On writ of mandamus, the Federal Circuit sided with Micron, concluding that TC Heartland changed the relevant controlling law. The court reasoned that, before TC Heartland, controlling Federal Circuit law barred the district court from adopting the venue objection now raised by Micron. Micron’s venue defense based on TC Heartland’s interpretation of the venue statute was not “available” at the time of Micron’s initial motion to dismiss, thus making any waiver under Rule 12(h)(1)(A) inapplicable. The court remanded the case for the district court to consider other grounds for venue objection forfeiture, such as untimeliness or inadequate preservation.