As patent litigators look for more clarity as to what the impact of TC Heartland, judges are delivering. On Friday Aug. 11, 2017, a Delaware federal court ruled that Apple Inc. may not move an infringement suit out of the district, because its Delaware retail store qualifies as “an established place of business.”

In Prowire LLC v. Apple Inc., Case Number 1:17-cv-00223, U.S. District Court for the District of Delaware, Apple argued that venue was improper in Delaware as it is incorporated in California and so does not “reside” in Delaware for purposes of the special patent venue provision. The patentee countered that Apple maintains one or more retail stores in Delaware where it sells products containing the infringing product, such that venue is satisfied under the “regular and established place of business” prong of the venue statute. Apple, in turn, argued that “one retail store is not enough to establish a ‘permanent and continuous presence.’” Judge Kearney disagreed, holding that Apple’s “retail store is a permanent and continuous presence where it sells the alleged infringing technology to consumers on a daily basis,” and that that was sufficient to anchor venue in Delaware. 

This decision, if it is duplicated in other district courts, will provide patentees more flexibility in selecting the venue in which to sue defendants that have a retail presence or multiple offices at which they have committed “acts of infringement.”