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IP: You can’t always sue Delaware-incorporated companies in Delaware

Plaintiffs should analyze factors relating to both personal jurisdiction and venue prior to selecting a forum in which to bring suit.

Imagine that you are preparing to sue an alleged infringer. A quick visit to the website for the Delaware Department of State’s Division of Corporations confirms your suspicion that the defendant is incorporated in Delaware, as many other companies are.

But before you start booking hotel rooms in Wilmington, take a look at the Federal Circuit’s recent decision in In re Link_A_Media Devices Corp. This case reminds us that figuring out where we can keep our opponents in court requires understanding the relationship, and important differences, between personal jurisdiction and venue.

The lower court judge decided that the convenience of parties and witnesses and the interests of justice did not favor transfer for a number of reasons, two of which are discussed below.

First the court reasoned (with abundant citation to district court and 3rd Circuit precedent) that the plaintiff’s choice of forum was “of paramount consideration” and should be honored “as long as a plaintiff has selected the forum for some legitimate reason.”


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Cullen Pendleton

Cullen Pendleton, Ph.D., is a litigation partner at Marshall, Gerstein & Borun LLP. He is an alumnus of the University of Houston, the University...

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