Visiting Judge Kearney Denies Motion to Dismiss

August 30, 2017

Publication| Intellectual Property

In Prowire LLC v. Apple, Inc., C.A. No. 17-223-MAK (D. Del. Aug. 9, 2017), visiting Judge Kearney denied the defendant’s motion to dismiss for failure to state a claim, in part, because the defendant’s arguments focused on information within its sole possession. The Court ordered that the parties proceed with expedited disclosures and determine whether the patent owner’s specific claims alleged “upon information and belief” were accurate. Judge Kearney also denied the defendant’s motion to dismiss for improper venue, finding that the defendant’s retail store in Delaware was a permanent and continuous presence where it sold the alleged infringing technology to consumers on a daily basis. Thus, under the venue statute, 28 U.S.C. § 1400(b), the defendant had a “regular and established place of business” in Delaware.

Key Point: A retail store where the infringing technology is sold may meet the “regular and established place of business” requirement of the patent venue statute.

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