By Memorandum Opinion entered by The Honorable Gregory M. Sleet in Koniklijke Philips N.V. v. HTC Corp., Civil Action No. 15-1125-GMS (D.Del. July 18, 2017), the Court denied Defendants’ Joint Motion to Transfer Venue which sought to transfer venue of the patent infringement action to either the Northern District of California, the Western District of Washington, or the Eastern District of New York pursuant to 28 U.S.C. § 1406, or alternatively to transfer all actions to the Northern District of California pursuant to 28 U.S.C. § 1404(a). In denying the motion, the Court found that, through their conduct in actively litigating the suit in the District of Delaware since December 2015 coupled with their withdrawal of their original motion to dismiss for improper venue following the Federal Circuit’s decision in TC Heartland, 821 F.3d 1338(Fed. Cir. 2016), defendants waived any right to challenge venue in the District of Delaware. *5-8. The Court also found that, although defendants pleaded the affirmative defense of improper venue in their answer to the second amended complaints, the affirmative defense of improper venue may be waived by a defendant’s subsequent actions through the course of litigation and the totality of defendants’ actions made it clear that they submitted to venue in the District of Delaware. *9-10.

A copy of the Memorandum Opinion is attached.

The general take away is that, if you are a party asserting the affirmative defense of improper venue, you need to assert and preserve the affirmative defense in a timely manner in your responsive pleading or motion and be mindful that your subsequent actions in litigating the case do not provide grounds for a finding of waiver.