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A Sales Agent’s Home Office May Qualify as a Regular and Established Place of Business

In our continued post-TC Heartland coverage, the Southern District of New York recently held that an employee’s home office in New York constituted a “regular and established place of business” in the state as required by the patent venue statute, 28 U.S.C. § 1400(b). RegenLab USA LLC v. Estar Technologies Ltd. et al., 16-cv-8771 (S.D.N.Y. Aug. 15, 2018).  In RegenLab, the court found that defendant Eclipse’s business model required its employees to work out of their homes, thereby ratifying a worker’s home in the Southern District as a place of business under In re Craydespite Eclipse’s failure to satisfy venue otherwise.

The court found that an Eclipse employee’s sales territory covered the New York and New Jersey regions, and the agent worked out of a home office in New York. The New York employee’s home office was not merely a “sporadic” or isolated work environment, but rather that the employee conducted “business” out of the home office in New York in various ways. The crux of the court’s reasoning seems to turn on the court’s recognition that because “all Eclipse employees work from home, home offices constitute a primary physical location for Eclipse’s business.”

The court further found that, while Eclipse did not specifically require that sales people live in their assigned territory, Eclipse did try “to hire people living within their assigned sales territory.” Eclipse’s job posting requirements necessitated working within a sales territory where the sales agent must “[i]dentify and qualify prospective customers, demonstrate company products and establish new business” and “develop and maintain local luminaries, workshops and training centers.” Moreover, sales agents must contact potential customers at their offices and conduct trainings when products arrive, which necessitated proximity to customers.

In consideration of these facts, the Court applied the factors from In re Cray and found that the home office qualified as a regular and established place of business in New York of the defendant Eclipse, and that venue was proper.

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About this Author

Andrew H. DeVoogd, Mintz Levin, Intellectual Property Litigation Lawyer, International Trade Commission Investigations attorney

Drew focuses his intellectual property practice in patent litigation specifically in International Trade Commission Section 337 investigations. He has participated in all phases of high-stakes patent litigation in the ITC, including as part of the strategy and trial team at multiple ITC evidentiary hearings, and also has significant experience in patent litigation in the federal district courts. In addition, Drew helps clients protect and leverage IP rights to maximize their value through strategic counseling, and has participated in negotiating and drafting numerous...

Daniel Weinger, Mintz Levin Law Firm, Boston, Intellectual Property Litigation Attorney

Daniel's practice in intellectual property focuses on patent litigation, both at the International Trade Commission and the Federal District Courts. Daniel has participated in all phases of patent litigation, including active engagement in multiple evidentiary hearings at the International Trade Commission. He has done work in a variety of technology areas, including computer software, software architecture, GPS, network devices, semiconductors, converged devices, and LED lighting.

Prior to joining Mintz Levin, Daniel worked with Pepper Hamilton LLP and as a database programmer with InterSystems, Corp., where he specialized in programming solutions for database development with a focus primarily on integration engines.

While on leave from Mintz Levin, from 2014 - 2015, Daniel practiced as a Special Assistant District Attorney in the Middlesex County (MA) District Attorney's Office, based in the Framingham, MA, district court.  During that time, Daniel prosecuted and tried numerous drug, larceny, breaking and entering, and motor vehicle cases in bench and jury sessions.  He also argued bail hearings, motions to suppress, and motions to dismiss.