Percept Technologies, Inc v. Fove, Inc.

Filing 52

ORDER that this case is transferred to the United States District Court for the District of Delaware. Signed by Judge Richard F. Boulware, II on 8/8/17. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

***

6
PERCEPT TECHNOLOGIES,

Case No. 2:15-cv-02387-RFB-CWH

7
Plaintiff,
8

ORDER
v.

9
10

FOVE, INC.
Defendant.

11
12

I.

INTRODUCTION

13

Plaintiff Percept Technologies brings this patent infringement case against Defendant

14

Fove, Inc., for alleged infringement of a Virtual Reality (VR) headset patent held by Plaintiff.

15

Defendant filed a Motion to Dismiss for lack of subject matter jurisdiction, lack of personal

16

jurisdiction, and improper venue. [ECF No. 8]. The Court initially held a hearing on this matter on

17

January 25, 2017, and denied the motion without prejudice, but ordered jurisdictional discovery

18

and supplemental briefing on the issue of jurisdiction. The Court held a jurisdictional hearing on

19

June 20, 2017, and ruled that venue is improper in the District of Nevada, and that the case shall

20

be transferred to the District of Delaware. The factual findings and legal determinations made at

21

that hearing are incorporated by reference, and the Court elaborates its ruling in the instant order.

22
23
24

II.

BACKGROUND
A. Jurisdictional Facts

25

Defendant FOVE, Inc. does not have any offices, employees, or land in Nevada. FOVE

26

imported a prototype of its product into Nevada, and used it in a demonstration at the Consumer

27

Electronics Trade Show (CES) in January 2015, held in Las Vegas, Nevada. FOVE also attended

28

1

CES in January 2016, in Las Vegas, Nevada. FOVE is incorporated in Delaware, and has offices

2

in California and Japan.

3
4

III.

LEGAL STANDARD

5

The patent venue statute, 28 U.S.C. 1400(b), provides that “[a]ny civil action for patent

6

infringement may be brought in the judicial district where the defendant resides, or where the

7

defendant has committed acts of infringement and has a regular and established place of business.”

8

The word “reside[nce]” in Section 1400(b), as applied to domestic corporations, refers only to the

9

State of Incorporation. TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514,

10
11

1516 (2017).
IV. DISCUSSION

12

As Defendant is incorporated in the State of Delaware, under the Supreme Court’s holding

13

in TC Heartland, whether venue is appropriate with this Court turns only on the second prong of

14

28 U.S.C. 1400(b). Plaintiff cites to VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d

15

1574, 1583 (Fed. Cir. 1990), for the proposition that the phrase “has a regular and established place

16

of business” within Section 1400(b) means any jurisdiction that has personal jurisdiction over the

17

corporation, and that this Court has specific personal jurisdiction over Defendant, and therefore

18

venue would be proper in this District.

19

However, this misstates the relevant dicta of VE Holding Corp., which primarily deals with

20

the “residence” section of the patent venue statute, and which, in a footnote, states, “For, wherever

21

a corporate defendant commits acts of infringement and has a regular and established place of

22

business, it will necessarily be subject to personal jurisdiction there.” 917 F.2d 1574 at FN 17. In

23

this case, Plaintiff argues that based on Defendant’s attendances at the CES conferences, as well

24

as one alleged infringing product sale to a Nevada resident, the Court has specific personal

25

jurisdiction over FOVE, and therefore venue is proper in the District of Nevada. The Court

26

disagrees that, under the patent venue statute, the alleged conduct is sufficient to make venue in

27

Nevada appropriate. Additionally, FOVE does not have a “regular and established place of

28
-2-

1

business” in Nevada. FOVE’s only offices in the U.S. are in California. FOVE does not have any

2

offices, employees, or land in Nevada.
Therefore, venue is improper in the District of Nevada.

3
4

V.

CONCLUSION

5

For the reasons stated above,

6

IT IS ORDERED that this case is transferred to the United States District Court for the

7

District of Delaware.

8
9

DATED: August 8, 2017.

10
_________
RICHARD F. BOULWARE, II
United States District Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-