Patent Venue Toolkit: Venue Discovery, Rule 12(b)(3) Motions, and Section 1404 Transfer Papers

How to use this toolkit

These are drafts to adapt, written for the common case of a domestic corporate defendant in a Federal Circuit venue dispute. Replace every [bracket], delete what does not fit, and check the assigned judge's standing orders and local patent rules before anything goes out the door. A court's page limits and discovery caps can be stricter than the federal rules.

The legal explanation lives elsewhere. Read Patent Venue After TC Heartland: Regular and Established Places of Business, Foreign Defendants, and Transfer for doctrine and Choosing or Challenging Venue in a Patent Case: A Practical Guide for the sequence. Patent Venue and Transfer Checklist: A Practical Checklist works as a companion control sheet. For transfer and forum papers outside patent cases, use Forum Strategy Toolkit: Clauses, Transfer Motions, and First-Filed Briefing.

Contents

1. Forum decision matrix (patent owner)
2. Venue allegation bank (patent owner)
3. Footprint worksheet (accused infringer)
4. Extension stipulation and answer language (accused infringer)
5. Venue interrogatories (patent owner)
6. Venue document requests and requests for admission (patent owner)
7. Rule 30(b)(6) topics (patent owner)
8. Venue discovery stipulation and meet-and-confer letter (both)
9. Rule 12(b)(3) and § 1406(a) motion outline (accused infringer)
10. Opposition outline for a § 1400(b) challenge (patent owner)
11. Declaration templates (accused infringer)
12. Section 1404(a) evidence chart and witness table (both)
13. Proposed order (accused infringer)
14. Mandamus decision matrix and petition outline (both)
15. Internal note to HR and facilities (business)

1. Forum decision matrix

Purpose: Compare candidate districts on venue security and practical value before filing. Owner: Patent owner's lead counsel. Timing: Before the complaint is drafted.

Drafting notes. A domestic corporation resides only in its state of incorporation, and only one district in a multi-district state. TC Heartland LLC v. Kraft Foods Group Brands LLC, 581 U.S. 258 (2017); In re BigCommerce, Inc., 890 F.3d 978 (Fed. Cir. 2018). Score every defendant separately. Andra Group, LP v. Victoria's Secret Stores, LLC, 6 F.4th 1283 (Fed. Cir. 2021). For the method-claim row, note that the Federal Circuit declined to resolve the split on mandamus in In re Comcast Cable Communications, LLC, No. 2026-104 (Fed. Cir. Dec. 9, 2025) (nonprecedential). For disclosure orders in Delaware, see In re Nimitz Technologies LLC, No. 2023-103 (Fed. Cir. Dec. 8, 2022) (nonprecedential). For the effect of schedules on inter partes review, see Inter Partes Review Strategy: Discretionary Denial, Estoppel, and the Parallel District Court Case.

2. Venue allegation bank

Purpose: Replace statutory recitals with pleaded facts. Owner: Patent owner's drafting attorney. Timing: With the complaint, and again on any amendment.

Residence (single-district or home-district state).

[Defendant] is a corporation organized under the laws of [State], with its principal place of business at [address] in this District. [Defendant] therefore resides in this District for purposes of 28 U.S.C. § 1400(b).

Owned or leased facility.

[Defendant] leases and operates a facility at [address], in this District, which it identifies as its [engineering center / service center / sales office] at [URL, captured on date]. At least [number] [Defendant] employees work at that facility on a regular basis, performing [functions] for [Defendant].

Coworking or shared space.

[Defendant] holds a membership in its own name for dedicated space at [address], in this District, which it has held since at least [date]. [Defendant] lists this address as a business location at [source]. [Defendant]'s employees, including [role], use that space on a regular basis to [conduct sales / provide customer support] for [Defendant].

Employee home used as a place of business.

[Defendant] [required, as stated in its job posting dated [date] and offer letter], that [role] reside in [area] within this District, in order to support [customer(s)] located in this District. [Defendant] has provided [describe inventory or equipment] to be kept and used at that location for [specific purpose], and [describe what makes this the defendant's place, such as payment for the space, the right to control, or public identification].

Agent.

[Agent] conducts [Defendant]'s [sales / service] at [address]. Under [agreement], [Defendant] has the right to give [Agent] interim instructions regarding [specific activity], and in practice does so by [describe]. [Agent]'s personnel regularly perform that activity at that location on [Defendant]'s behalf.

Foreign defendant.

[Defendant] is organized under the laws of [country] and is not a resident of the United States. It may be sued in any judicial district. 28 U.S.C. § 1391(c)(3). This Court has personal jurisdiction over [Defendant] because [specific contacts], and in the alternative under Fed. R. Civ. P. 4(k)(2), because [Defendant] is not, to Plaintiff's knowledge, subject to jurisdiction in any state's courts of general jurisdiction and its contacts with the United States as a whole satisfy due process.

Acts of infringement (method claim).

[Defendant] performs [each step / the steps of] claim [__] in this District, including by [describe], [at location]. [If only partial: As to the remaining steps, Plaintiff alleges that [Defendant] performs them at [location / using systems located in].]

Drafting notes. Westech Aerosol Corp. v. 3M Co., 927 F.3d 1378 (Fed. Cir. 2019), rejected a recital plus generic references to sales representatives and revenue. The agent allegation has to meet the interim-control test in In re Volkswagen Group of America, Inc., 28 F.4th 1203 (Fed. Cir. 2022), so do not use it on the strength of a form dealer agreement. The home allegation must reach beyond what failed in In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017), and Celgene Corp. v. Mylan Pharmaceuticals Inc., 17 F.4th 1111 (Fed. Cir. 2021). Use it only with real support and with Rule 11 in mind. The Rule 4(k)(2) wording tracks M-I Drilling Fluids UK Ltd. v. Dynamic Air Ltda., 890 F.3d 995 (Fed. Cir. 2018). Drafting a Complaint That Survives a Motion to Dismiss covers plausibility generally.

3. Footprint worksheet

Purpose: Collect the facts for a venue decision and any declaration. Owner: In-house or outside counsel, drawing on HR, payroll, facilities, IT, and sales operations. Timing: Start within days of service, and finish before the response date. Keep it at counsel's direction, and assume the underlying facts are discoverable even when the document is not.

Complete one sheet per entity per district. Record status at the complaint date and at the start of the alleged infringement.

A. Entity

B. Places

C. People with a home address in the district (from payroll)

D. Third parties

E. Infrastructure

F. Infringement allegations in the district: accused sales, use, testing, or method steps performed here, with dates.

G. Assessment

Drafting notes. Section C's questions come from Cray, which considered whether the defendant selected the location, stored inventory or held demonstrations there, or conditioned employment on the location. Equipment deserves separate attention after In re Monolithic Power Systems, Inc., 50 F.4th 157 (Fed. Cir. 2022). Section D follows the factors listed in In re ZTE (USA) Inc., 890 F.3d 1008 (Fed. Cir. 2018). Section E tracks In re Google LLC, 949 F.3d 1338 (Fed. Cir. 2020), including its distinction between ancillary maintenance and the conduct of the business. Footnote 1 of that order explains why section G asks about both dates. Employee home data is sensitive: limit circulation and seek a protective order before producing it. Negotiating a Protective Order and Filing Under Seal: A Practical Guide covers the mechanics. Include this data in your preservation notice under Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case.

4. Extension stipulation and answer language

Purpose: Buy time without forfeiting anything, and preserve the defense if answering. Owner: Defense counsel. Timing: Before the response date.

Stipulation.

The parties stipulate that the time for Defendant [Name] to answer, move, or otherwise respond to the Complaint is extended to [date]. This stipulation is not a general appearance or submission to venue. Defendant [Name] reserves all defenses and objections, including under Fed. R. Civ. P. 12(b)(2)-(5), 28 U.S.C. §§ 1400(b) and 1406(a), and the right to seek transfer under 28 U.S.C. § 1404(a).

Answer, venue paragraph response.

Defendant denies that venue is proper in this District under 28 U.S.C. § 1400(b). Defendant does not reside in this District and does not have a regular and established place of business in this District. [Defendant denies committing acts of infringement in this District.]

Answer, affirmative defense.

[__]th Defense (Improper Venue). Venue is improper in this District under 28 U.S.C. § 1400(b) and Fed. R. Civ. P. 12(b)(3). Defendant does not waive, and expressly preserves, this defense by answering or by participating in this action as required by the Court's orders.

Drafting notes. Rule 12(h)(1) waiver flows from omission in a motion or pleading. Fed. R. Civ. P. 12. Forfeiture can happen even without it, by untimeliness or consent, under In re Micron Technology, Inc., 875 F.3d 1091 (Fed. Cir. 2017). Filing a preservation sentence does not protect a party that then litigates the merits at length without pressing for a ruling. In re Oath Holdings Inc., 908 F.3d 1301 (Fed. Cir. 2018), holds that Federal Circuit law governs these questions. Calendar with care; Missed Federal Deadlines: Rule 6, Excusable Neglect, and the Deadlines a Court Cannot Excuse sets out what happens when a date slips.

5. Venue interrogatories

Purpose: Establish the Cray and Google facts with sworn answers. Owner: Patent owner. Timing: Immediately after a § 1406 motion is filed, subject to leave if discovery is not otherwise open.

Definitions. "District" means the [__] District of [State]. "Relevant Period" means [date of first alleged infringement] through [date of complaint]. "You" means [Entity] and does not include any affiliate, unless stated. "Place" means any physical location, including an office, home, storage unit, retail location, shelf, rack, or cage.

1. Identify every Place in the District that You owned, leased, rented, licensed, or had the right to access or control at any time during the Relevant Period, stating for each its address, the instrument granting the right, its use, the dates of use, and who was regularly present there.
2. Identify, by role and employing entity, each of Your employees and contractors whose primary work location or home address was in the District during the Relevant Period, and state each person's job title, dates of employment, and territory or customers served.
3. For each person identified in Interrogatory 2, state whether You required, requested, or preferred that the person live or work in the District, and describe any communication, posting, or agreement reflecting this.
4. Identify all inventory, samples, demonstration units, test equipment, tools, or literature that You provided and that were kept at any Place in the District during the Relevant Period, stating who provided it, who kept it, for what purpose, and whether it was distributed or sold from that Place.
5. Describe all payments or reimbursements You made relating to any Place in the District, including rent, utilities, internet, equipment, storage, or a home-office allowance.
6. Identify every representation by You that You have a location in the District, including website listings, directories, signage, business cards, regulatory filings, and marketing.
7. Identify every third party that performed services for You at a Place in the District during the Relevant Period, including call centers, distributors, service providers, and hosting facilities, and for each describe the services, the contract, who selected the location, whether the third party needed Your permission to move, and any instructions You gave about how the work was to be done.
8. Identify all equipment You own or control that was located in the District during the Relevant Period, including servers and network equipment, and identify who installed, accessed, and maintained it, and how often.
9. Describe the business You conducted from each Place identified in Interrogatory 1, including any sales, service, engineering, testing, storage, or shipping.
10. Describe Your sales, offers for sale, use, and testing of the Accused Products in the District during the Relevant Period.
11. If You contend that any Place is the place of an employee or affiliate rather than Yours, state the factual basis, including any facts showing corporate separateness.

Drafting notes. Keep these within the Rule 33 limit, and remember subparts count. Interrogatories 1 to 3 follow Cray's possession and conditioning considerations. Interrogatory 4 addresses both Cray's storage point and Monolithic Power. Interrogatory 7 follows ZTE and Volkswagen. Interrogatory 8 targets Google's employee or agent requirement. Interrogatory 11 tracks Andra's corporate separateness threshold. Defendants should object to overbroad definitions of "You" and may answer by business records under Rule 33(d). Mastering Interrogatories: A Comprehensive Guide to Objecting and Responding in Civil Litigation addresses objections. Requesting venue facts for other districts is relevant only to the comparison consideration in Cray, so ask for that narrowly, if at all.

6. Venue document requests and requests for admission

Purpose: Get the documents behind the answers and narrow what remains in dispute. Owner: Patent owner. Timing: Served with the interrogatories.

Document requests.

1. Leases, subleases, licenses, memberships, and other agreements for any Place in the District.
2. Documents sufficient to show employees and contractors with a home or work address in the District, by role, employer, and dates.
3. Job postings, recruiting communications, offer letters, relocation agreements, and territory assignments that refer to the District or a city or customer in it.
4. Remote work, home office, stipend, and expense policies, and expense records relating to any Place in the District.
5. Records of shipments of inventory, samples, or equipment to any address in the District.
6. Website pages (current and archived), directories, and marketing materials referring to a location in the District.
7. Contracts with third parties performing services at a Place in the District, and communications giving instructions about those services.
8. Organizational charts and documents sufficient to show the corporate relationship among the defendants and their affiliates who operate in the District.
9. Documents sufficient to show sales of Accused Products into the District.
10. Equipment inventories and access logs for equipment in the District.

Requests for admission.

1. Admit that during the Relevant Period You leased or licensed the Place at [address].
2. Admit that [role] worked from [city], in the District, during the Relevant Period.
3. Admit that You required [role] to reside in [area] as a condition of employment.
4. Admit that You provided [equipment] to [role] for use at [location].
5. Admit that You listed [address] on Your website as a business location.
6. Admit that You sold the Accused Product to a customer located in the District during the Relevant Period.

Drafting notes. Requests go under Rule 34 and Rule 36. Limit requests in keeping with Rule 26(b)(1) proportionality, because a narrow request is easier to compel under Rule 37. Dated postings tied to an entity are worth more than undated ones, as Celgene illustrates. A defendant should provide employee data under a confidentiality designation and may redact street addresses to city and county when that is all the dispute requires.

7. Rule 30(b)(6) topics

Purpose: Bind the entity on the venue facts. Owner: Patent owner, with defense preparation. Timing: After documents, ahead of the opposition date.

Notice topics, for the Relevant Period and limited to the District:

1. Your real property, leases, licenses, storage, and other places.
2. The location, role, and duties of Your employees and contractors, and any requirement that they live or work in the District.
3. Payments and reimbursements related to any location.
4. Inventory, samples, and equipment kept at any location, and the reason.
5. Your public statements about locations.
6. Your contracts with and instructions to third parties performing services in the District.
7. The facts stated in the declaration(s) of [name].
8. Your relationship with [affiliate] with respect to any location in the District.

Drafting notes. A Rule 30(b)(6) notice requires a meet-and-confer on the matters for examination. Defense counsel should prepare one witness who can speak to all of these from records and should separate venue preparation from merits preparation. Witness Preparation Toolkit: Session Agendas, Instruction Sheets, and Practice Examinations offers session plans, and Preparing a Witness for Deposition: What Is Proper, What Is Coaching, and What the Other Side Can Discover explains what preparation is proper and what may be discoverable. A deponent's "I don't know" at this stage will likely appear in the plaintiff's opposition.

8. Venue discovery stipulation and meet-and-confer letter

Purpose: Keep venue discovery short and avoid a separate dispute over it. Owner: Both sides. Timing: Within days of the motion.

Stipulation.

1. Venue discovery shall close [45] days after entry of this Order.
2. Written discovery shall be limited to Defendant's facilities, personnel, and activities in the [__] District of [State] during [period], and shall not exceed [10] interrogatories, [15] document requests, and [10] requests for admission.
3. Plaintiff may take one Rule 30(b)(6) deposition of no more than [4] hours and may depose each declarant for no more than [3] hours. Defendant may depose any declarant offered by Plaintiff under the same limits.
4. Employee names and home addresses shall be treated as [Attorneys' Eyes Only] under the Protective Order. Defendant may identify employees by role and city in the first instance.
5. Plaintiff's opposition is due [14] days after the close of venue discovery, and Defendant's reply is due [7] days after that.
6. Pending a ruling, [merits discovery is stayed / the parties shall proceed only with ___]. Nothing in this Order waives any party's position on venue or transfer.
7. Production of privileged material in venue discovery is governed by the Rule 502(d) Order entered in this case.

Meet-and-confer letter (defense, responding to overbroad requests).

Dear [Counsel]: We received Plaintiff's venue discovery requests dated [date]. We intend to cooperate so the Court can decide the pending motion promptly. As served, however, Requests [__] seek nationwide personnel data and information about affiliates that have no presence in the District. Those requests are not tied to the requirements of 28 U.S.C. § 1400(b) as explained in In re Cray and In re Google. We propose limiting them to [describe], for the period [dates]. We can produce a table of employees by role, employer, and city within [10] days of an agreed protective order. Please let us know if you are available on [date] to discuss. We reserve all objections.

Drafting notes. The Supreme Court has said discovery is available on venue facts. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978). The length of discovery in Celgene, two years, is a reason to agree on limits. Paragraph 6 reflects In re Apple Inc., 52 F.4th 1360 (Fed. Cir. 2022), which requires prompt venue discovery but expressly leaves open how much merits discovery may proceed. Paragraph 7 assumes an order of the kind described in Clawback Toolkit: 502(d) Orders, Clawback Notices, and Privilege Review Protocols.

9. Rule 12(b)(3) and § 1406(a) motion outline

Purpose: The defendant's opening paper. Owner: Defense counsel. Timing: By the response date, consolidated with all other available Rule 12(b) defenses.

I. Introduction. One paragraph: where the company is, where it is not, and what the plaintiff alleges. State the relief sought (dismissal or transfer to [district]).

II. Facts. Cite the declarations. Corporate residence. No place in the District. The employees and what they do, stated accurately. The complaint's allegations.

III. Legal standard.

• 28 U.S.C. § 1400(b) is the sole and exclusive venue statute for domestic defendants in patent cases. TC Heartland; Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957).
• The statute is read narrowly. Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260 (1961); Stonite Products Co. v. Melvin Lloyd Co., 315 U.S. 561 (1942).
• Plaintiff has the burden, and Federal Circuit law governs. ZTE.
• Facts, not conclusions, are required. Westech.
• 28 U.S.C. § 1406(a) and Rule 12(b)(3) supply the remedy.

IV. Argument.

A. Defendant does not reside in the District. State of incorporation. In a multi-district state, BigCommerce.

B. Defendant has no regular and established place of business in the District.

1. No physical place of the defendant. (Cray: a home where an employee works is not enough. Celgene.)
2. Not regular and established. (If relevant: temporary projects, trade shows.)
3. Not the defendant's place. Address each Cray consideration: ownership or control, conditioning employment, storage, representations, comparison.
4. No employee or agent regularly conducting business at any such place. (Google.)
5. Third parties are not agents. Interim control is missing. (Volkswagen.) Affiliates are separate. (Andra.)

C. [If applicable] Plaintiff has not alleged an act of infringement in the District. (Method claims: preserve the all-steps argument under NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282 (Fed. Cir. 2005), and AML IP, LLC v. Bath & Body Works Direct, Inc., 2024 WL 3825242 (E.D. Tex. Aug. 13, 2024), and acknowledge contrary decisions such as SEVEN Networks, LLC v. Google LLC, 315 F. Supp. 3d 933 (E.D. Tex. 2018). Comcast left the question open.)

D. The case should be dismissed or transferred. § 1406(a). Identify a proper transferee district. Explain why.

E. Alternatively, the Court should transfer under § 1404(a). This section assumes venue is proper only for purposes of the alternative argument. See form 12.

F. Request for prompt ruling. Cite In re Apple Inc., 979 F.3d 1332 (Fed. Cir. 2020), and In re Horseshoe Entertainment, 337 F.3d 429 (5th Cir. 2003), and ask that merits deadlines be deferred or sequenced.

Drafting notes. Do not overclaim "no employee in the district" when there are three. Address the bad fact directly and explain why Cray or Celgene controls. If a plaintiff is likely to invoke Monolithic Power, say what it did not decide: the majority denied mandamus and stated that it was not reaching the merits. Include every available Rule 12(b)(2) through (5) ground to avoid Rule 12(g)(2) waiver. Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants covers format and consolidation. A foreign defendant cannot use § 1400(b) at all under In re HTC Corp., 889 F.3d 1349 (Fed. Cir. 2018), so a mixed group of defendants needs separate sections.

10. Opposition outline for a § 1400(b) challenge

Purpose: The plaintiff's response, with or without venue discovery. Owner: Patent owner's counsel. Timing: By the response date, or as extended, with a request for discovery if facts are in dispute.

I. Introduction. What the defendant has in the District, in concrete terms.

II. Request for venue discovery, if needed. Identify specific disputed facts, what discovery would show, and why the requested discovery is limited. Oppenheimer.

III. Facts, organized by requirement.

IV. Argument. A. Acts of infringement are properly alleged, and infringement is not decided at this stage. In re Cordis Corp., 769 F.2d 733 (Fed. Cir. 1985). B. There is a physical place. It need not be a formal office, and leased space, shelf, or rack can be a place. Cray; Google. C. It is regular and established. Dates, continuity, permanence. D. It is the defendant's. Apply Cray. If an employee home: conditioning, inventory, equipment, customer link, public statements. Compare Cordis. Distinguish Cray and Celgene on their stated facts. E. An employee or agent regularly conducts business there, in the Google sense of production, storage, transport, or exchange of goods or services. F. The place need not be connected to the accused product. Monolithic Power, n.1.

V. Alternative relief. If venue is improper, transfer rather than dismiss, under § 1406(a), to [district], in the interest of justice. Note any damages consequences of dismissal.

Drafting notes. Avoid "business model" rhetoric unless you can tie it to Cray's note about companies that use employees' homes as a place of business. The Federal Circuit rejected a modern-business argument in BigCommerce as "a non-starter." Avoid arguing that personal jurisdiction contacts satisfy § 1400(b), which Cray warned against conflating. Do not rest on a theory that scattered homes and lockers add up to a district-wide place, since Celgene was unconvinced. Do not rely on a shared trade name.

11. Declaration templates

Purpose: The evidence for sections 9 and 12. Owner: Defense counsel with HR, facilities, and engineering declarants. Timing: Drafted during the audit, signed under 28 U.S.C. § 1746 only after each statement has been checked.

Template A: facilities and residence.

I, [Name], declare as follows:

1. I am [title] of [Company]. I make this declaration from personal knowledge and my review of [Company]'s [corporate, real estate, and accounting] records, which are kept in the ordinary course of business.
2. [Company] is a corporation organized under the laws of [State], with its principal place of business in [city, state].
3. As of [complaint date], and from [date] until then, [Company] did not own, lease, rent, sublease, or hold a license to use any office, store, warehouse, or other real property in the [__] District of [State].
4. [Company] did not, as of those dates, have its name on any sign or building in the District, and did not list any address in the District as a [Company] location on its website, in any directory known to me, or in any filing with a government agency [except as follows: ___].
5. [Company] does not store inventory in the District. [Explain any exceptions.] I declare under penalty of perjury that the foregoing is true and correct. Executed on [date] in [place]. [Signature]

Template B: personnel.

1. I am [title] and am responsible for [HR records]. I reviewed [Company]'s payroll and HR records for this declaration.
2. As of [complaint date], [number] of [Company]'s [total] employees had a home address in the District. Their roles are: [list].
3. [Company] does not require those employees to live in the District. Their written terms of employment do not refer to the District. Each may move to a different location [without Company's approval / with notice to HR for payroll purposes only].
4. [Company] does not pay rent, mortgage, or utilities for those homes, [other than a general remote-work allowance of the same amount provided to all U.S. remote employees regardless of location].
5. [Company] has no right to control the use of or access to those homes.
6. [Company] does not require any of those employees to keep inventory or equipment at home. [If any employee keeps equipment at home, state what, why, and whether required.]
7. [Company] does not advertise or identify those homes as a place of business.

Template C: technical and transfer.

1. I am [title]. I am familiar with the research, design, and development of [Accused Feature] based on [basis].
2. [Accused Feature] was designed and developed by [teams] at [location] between [dates].
3. The following current employees have knowledge relevant to this case: [Name, title, location, knowledge].
4. The following former employees or third parties, to my knowledge, have relevant knowledge: [Name, last known location, knowledge].
5. Source code for [Accused Feature] is maintained at [system] and may be accessed by [teams at locations] under [access restrictions]. Design documents, financial information, and marketing materials for [Accused Feature] are maintained by [custodians] in [locations].
6. To my knowledge, no [Company] employee in [plaintiff's district] worked on [Accused Feature]. [Company]'s office in [city] performs [functions], which do not relate to [Accused Feature]. [Disclose any connection.]

Drafting notes. Paragraph 3 of Template B responds to Cray's statement that an employee's freedom to move at his or her own instigation cuts against the home being the defendant's place. Paragraph 5 of Template C reflects In re TikTok, Inc., 85 F.4th 352 (5th Cir. 2023), which relied on restricted access to source code. Paragraph 6 anticipates the problem in In re Google LLC, No. 2026-157 (Fed. Cir. Oct. 6, 2026) (nonprecedential), where testing in the forum existed but was unconnected to the accused functionality, and the court cared that the record showed it. Do not sign a declaration through a person who merely passes along what others said without saying so. In In re Apple Inc., 52 F.4th 1360 (Fed. Cir. 2022), that structure led to a dispute about additional declarations. Prepare each declarant for deposition.

12. Section 1404(a) evidence chart and witness table

Purpose: Organize the convenience record, for a motion or an opposition. Owner: Whichever side is writing. Timing: Assemble before filing, and update after venue discovery.

Evidence chart.

Witness table.

Plaintiff's counter-chart prompts. For each listed witness: is the knowledge real, or did the person have only general exposure? SAP credited a court's finding that a movant only said employees "potentially" had relevant knowledge. For each forum tie: does it predate the suit and relate to the accused function? If the plaintiff has an office, how old is it and who works there, compare In re Microsoft Corp., 630 F.3d 1361 (Fed. Cir. 2011)? List in-district customers, engineers, and third parties who actually touched the accused feature. Monolithic Power shows that these can defeat a petition.

Drafting notes. Other circuits use their own list of factors, so reorganize this chart for the forum. In Delaware, use Jumara v. State Farm Insurance Co., 55 F.3d 873 (3d Cir. 1995), and remember In re Link_A_Media Devices Corp., 662 F.3d 1221 (Fed. Cir. 2011). The Volkswagen 100-mile rule should not be applied mechanically to overseas witnesses, as Genentech explains. Under Clarke, the Fifth Circuit requires a significant marginal gain that the evidence shows will actually materialize, so drop any entry you cannot support.

13. Proposed order

Purpose: Give the court something ready to sign. Owner: Defense counsel. Timing: With the motion.

ORDER Before the Court is Defendant [Name]'s Motion to Dismiss for Improper Venue or, in the Alternative, to Transfer. Having considered the motion, the response, the reply, and the record, the Court finds that Plaintiff has not carried its burden to show that venue is proper in this District under 28 U.S.C. § 1400(b). The motion is GRANTED. [This action is DISMISSED WITHOUT PREJUDICE as to Defendant [Name].] [In the interest of justice, under 28 U.S.C. § 1406(a), the Clerk shall TRANSFER this action to the United States District Court for the [__] District of [State].] SO ORDERED.

Drafting notes. Dismissal without prejudice was the form affirmed in Westech. The court's choice between dismissal and transfer is usually left open by Federal Circuit writs, as in Google. An alternative order for § 1404(a) transfer should recite the factors found and the clearly-more-convenient standard, where that is the governing test.

14. Mandamus decision matrix and petition outline

Purpose: Decide quickly whether to seek a writ, and draft the petition. Owner: Appellate and trial counsel together. Timing: Decision within days of the order. Interlocutory Appeal Checklist: A Practical Checklist has general timing tasks and Interlocutory Appeals and Mandamus: Getting Appellate Review Before Final Judgment the law.

Decision matrix.

Petition outline.

1. Cover and caption. "In re [Petitioner]," Federal Circuit, on petition for writ of mandamus to the [court], No. [], Judge []. Certificate of interest as the Federal Circuit's rules require.
2. Relief sought. Direct the district court to vacate its order of [date] and [dismiss or transfer under § 1406(a) / transfer to [district] under § 1404(a)].
3. Issues presented. One or two sentences each. Frame § 1406 issues as legal questions.
4. Statement of facts and of the case. Facts in the record, cited to the appendix, by factor or requirement. Procedural history including how long the motion was pending and what happened on the merits in the meantime.
5. Why the writ should issue. Use the three requirements from Cheney v. United States District Court, 542 U.S. 367 (2004), in order.
   • No other adequate means. For § 1404(a), HTC at 1352 to 1353 and its footnote explaining why appeal is inadequate. For § 1406, explain why this case fits Schlagenhauf v. Holder, 379 U.S. 104 (1964), and La Buy v. Howes Leather Co., 352 U.S. 249 (1957), and cite the conflicting district court decisions, in the manner of Google.
   • Clear and indisputable right. Regional circuit law for § 1404(a), In re TS Tech USA Corp., 551 F.3d 1315 (Fed. Cir. 2008). Federal Circuit law for § 1400(b), Cray; ZTE. Walk through each error and then the corrected balance, as In re Google (2023) did.
   • Appropriate under the circumstances. Recurrence, supervisory value, importance beyond the case. In re Volkswagen (en banc).
6. Conclusion. Specific relief.
7. Appendix. Order under review, motion papers, declarations, deposition excerpts, and transcripts.
8. Motion to stay, if needed. Separate paper, noting that the district court was asked first or why doing so was impractical.

Drafting notes. The petition proceeds under 28 U.S.C. § 1651 and Fed. R. App. P. 21, with jurisdiction tied to 28 U.S.C. § 1295. Check the current Federal Circuit rules for word limits, certificates, and fees. A fee problem briefly got HTC's petition dismissed. If the order is not yet written but the case is racing forward, Apple (2020) shows how an early petition can be treated, but reconsider first whether a short status request would do. Keep the tone respectful: the panel knows the district judge, and a clear table of errors does more than adjectives. For opposing a petition, emphasize deference, the record below, any thin showing, and alternative grounds. SAP shows that a petition can identify real errors and still fail. Interlocutory Review Toolkit: 1292(b) Certifications, Rule 54(b) Judgments, and Mandamus Petitions contains further general forms.

15. Internal note to HR and facilities

Purpose: Give non-lawyers a short, usable explanation of how location decisions create venue facts. Owner: General counsel or outside counsel. Timing: Annually, or when a remote work policy changes. Business reasons should still drive decisions.

To: HR, Recruiting, Facilities, Sales Operations From: Legal Re: Where we put people and equipment can affect where we can be sued

Patent lawsuits can only be brought against us in [State of incorporation] or in a federal district where we have a "regular and established place of business" and are alleged to infringe. Courts look at the facts on the ground. So we ask for your help with the following.

1. Tell Legal before we sign a lease, coworking agreement, storage contract, or data center contract in a new location.
2. Be accurate in job postings. Say "remote" if a job is remote. If a role genuinely must be in a location, that is fine, but check with Legal first so we know about it.
3. Tell Legal before we ship inventory, demo units, or lab equipment to an employee's home on an ongoing basis.
4. Do not list employee homes as company locations on websites, directories, or business cards.
5. Keep records current: where each employee works, what the company pays for, and who has what equipment.

This note is about knowing the consequences of a choice. It does not ask anyone to make a decision they would not otherwise make. If we receive a complaint or demand letter, do not change any of these arrangements without talking to Legal first, and preserve all related records.

Drafting notes. Each item maps to a Cray consideration. The last paragraph matters because changing facts after suit does little under the unresolved timing rule in footnote 1 of Google, and may appear strategic. Do not write this memo in a way that suggests a company is hiding its activities, since it could be produced if privilege is lost. If a demand letter has arrived, Managing Willfulness Risk After a Patent Notice Letter: A Practical Guide addresses related early steps, and Declaratory Relief Toolkit: Complaints, Jurisdictional Briefing, and Discretionary Dismissal provides papers for a declaratory response.

These forms are general starting points and not legal advice for your matter; a court's rules and your facts will require changes that only someone looking at the record can make.

Related Documents

Related Articles

• Patent Venue After TC Heartland: Regular and Established Places of Business, Foreign Defendants, and Transfer: the doctrine these forms apply.
• Interlocutory Appeals and Mandamus: Getting Appellate Review Before Final Judgment: the law behind form 14.
• Preparing a Witness for Deposition: What Is Proper, What Is Coaching, and What the Other Side Can Discover: the limits of witness preparation for forms 7 and 11.
• Missed Federal Deadlines: Rule 6, Excusable Neglect, and the Deadlines a Court Cannot Excuse: consequences if a Rule 12 date passes.

Related Guides

• Choosing or Challenging Venue in a Patent Case: A Practical Guide: how and when to use each paper.
• Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants: consolidating defenses with form 9.
• Moving or Keeping a Case in Your Chosen Forum: A Practical Guide: general transfer practice.

Related Checklists

• Patent Venue and Transfer Checklist: A Practical Checklist: a control sheet for the whole dispute.
• Venue and Transfer Checklist: A Practical Checklist: general venue tasks.
• Interlocutory Appeal Checklist: A Practical Checklist: timing tasks for form 14.

Related Toolkits

• Forum Strategy Toolkit: Clauses, Transfer Motions, and First-Filed Briefing: forum clauses and first-filed briefing.
• Interlocutory Review Toolkit: 1292(b) Certifications, Rule 54(b) Judgments, and Mandamus Petitions: general forms for writs.
• Declaratory Relief Toolkit: Complaints, Jurisdictional Briefing, and Discretionary Dismissal: declaratory complaints and jurisdiction briefing.
• Hatch-Waxman Toolkit: Notice Letters, Complaints, and Settlement Considerations: Hatch-Waxman papers, where venue follows Valeant and Celgene.
• Patent Litigation Toolkit: A Roadmap and Research Guide: the larger patent litigation roadmap.
• Witness Preparation Toolkit: Session Agendas, Instruction Sheets, and Practice Examinations: session plans for venue declarants and Rule 30(b)(6) witnesses.
• Clawback Toolkit: 502(d) Orders, Clawback Notices, and Privilege Review Protocols: Rule 502(d) orders and clawback notices for venue discovery.