In In re: Micron Technology, Inc., the Federal Circuit addressed how waiver rules should apply to venue defenses raised in the wake of the Supreme Court's recent decision in T.C. Heartland LLC v. Kraft Foods Group Brands LLC. In TC Heartland, the Supreme Court reversed years of Federal Circuit precedent and held that 'residence' in the patent venue statute has a narrower meaning than it does in later iterations of the general venue statute.

After TC Heartland, defendants throughout the country sought to dismiss or transfer their cases for alleged improper venue pursuant to Fed. R. Civ. P. 12(b)(3). But under Rule 12(h)(1)(A), a defense of improper venue is waived if it is "available" and not made at the time of a motion to dismiss. Most courts agreed that this 'availability' turned on whether TC Heartland was a change in the law, but they disagreed on whether it was.

In Micron, the Federal Circuit granted a petition for a writ of mandamus and held that TC Heartland was a change in law. It also held that Micron's failure to raise a venue defense in its pre-Heartland Rule 12(b) motion did not waive the defense under Rule 12(h)(1)(A) because the controlling precedent "would plainly have barred the district court from adopting a venue objection." The Federal Circuit nonetheless held that "Rule 12(h)(1) is not the sole basis" for waiver, and observed that general waiver principles might still apply. The Court, however, did not articulate a specific waiver standard that should apply.

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