New York Law Journal "Some Humans (Still) Required: Court Examines 'Place of Business'

“Three things matter in real estate,” the old saying goes, “location, location, location.” That can be true in litigation as well. The venue in which a trial is held can often be dispositive of a case, for a host of reasons ranging from the applicable law, to the character of the jury pool, to the simple business economics of trying a case in an inconvenient forum.

But questions of jurisdiction and venue—questions of the “location” of an improper act, or a bad actor, or a particular harm, or a piece of intangible digital property—become extremely complex in a highly networked and widely distributed commercial environment. If unlawful conduct occurs on the Internet, the question of “where” it occurred has been a challenge for the courts in recent years. The legal regimes governing jurisdiction and venue are among the oldest in American law, and they are not always a perfect fit for changed circumstances. So the courts face difficult questions: How much Internet commerce is enough to invoke general personal jurisdiction, which typically requires a sustained business “presence?” Where does intangible information “exist” for purposes of a property claim, if it is stored in a distributed cloud computing infrastructure? Over time, the courts have developed a series of loose rules for these kinds of questions, but there are few bright lines.

Patent law, in particular, has its own jurisdictional and venue rules that can be especially thorny, especially given that patents often involve, by definition, cutting-edge technology. For patent venue purposes, courts must perform a heightened inquiry, determining whether the alleged infringer has a “place of business” within the district. Often, that analysis can be challenging and technical, and it is different from the normal general jurisdiction test. However, a recent case involving autonomous robot lockers offered a somewhat simplified take on the analysis that is worth a closer look. Read more.

This article first appeared in the New York Law Journal on September 16, 2019. Jack Millson, an associate at the firm, assisted with the preparation of this article.