Amazon Warehouse Used by Accused Infringer Not a “Regular and Established” Place of Business for Establishing Venue

May 30, 2025

Reading Time : 2 min

A district court recently dismissed a patent infringement complaint for improper venue under 28 U.S.C. § 1400(b), finding that the storage and distribution of products from an Amazon warehouse was not sufficient to establish that warehouse as a regular and established place of business in the district.

The plaintiff sought to establish venue based on the e-commerce defendant’s “regular and established” business in the district under § 1400(b). Specifically, the plaintiff argued that the defendant’s use of Amazon warehouses in the district to store and ship its products to customers with a high level of efficiency showed that the warehouses were regular and established places of business. The plaintiff also argued that the warehouses should be deemed places of the defendant because the defendant contracted with Amazon and paid a “lease fee” for use of Amazon warehouses.

The court determined that venue was improper under the three-prong test of In re Cray. First, the court found that the first prong was met because there was no dispute that the Amazon warehouses were physical places. However, for the second prong, the court rejected the plaintiff’s argument that the warehouses were regular and established places of business for the defendant. The court explained that because the defendant lacked any employees at the warehouses, the plaintiff needed to show an agency relationship between the defendant and Amazon. The court found that the plaintiff had failed to show that Amazon acted at the defendant’s direction, nor had the plaintiff shown that the defendant had rights to control any activity at the warehouse. The court explained that storing products and facilitating distribution were insufficient to show control of activity at the warehouse. Finally, for the third prong of Cray, the court rejected the argument that the defendant had established or ratified the warehouses as places of business through making lease payments. On the contrary, the court explained that the defendant did not lease the warehouse to use as its own place, so the defendant had not established a place of business. Similarly, for ratification, the court found that the defendant’s and Amazon’s relationship was more akin to an authorized retailer, and that the lease fee was more like a contract to distribute than a lease of a physical location to do business.

In concluding its analysis, the court also recognized the potential far-reaching impact of finding venue based on the defendant’s use of an Amazon warehouse, particularly in view of the Amazon warehouses throughout the country. The court noted that the patent venue statute requires a stronger showing of localized business activities and presence within a given district.

Practice Tip: In patent infringement cases involving e-commerce and the use of third-party warehousing, venue is not necessarily established where the accused infringer’s products are stored at the third-party’s warehouse to facilitate the distribution of those products to customers in the district. Patentees and accused infringers should carefully consider whose employees work at the warehouse and whether there is evidence of an agency relationship between the accused infringer and the warehouse operator. Furthermore, patentees and accused infringers should carefully consider how the warehouse space is used and who controls it.

CKI 2712218 LLC v. G&L Decor Inc., 9:24-cv-81447, D.I. 25 (S.D. Fla. Apr. 17, 2025)

Share This Insight

Previous Entries

IP Newsflash

August 11, 2025

In considering a motion to dismiss infringement claims for two related patents, the District of Massachusetts recently held that pre-suit knowledge of a “parent” patent, without more, is insufficient to establish pre-suit knowledge of the “child” patent for purposes of indirect and willful infringement.

...

Read More

IP Newsflash

August 8, 2025

Following a jury verdict finding trade secret misappropriation, the District Court for the District of Massachusetts granted-in-part a plaintiff’s motion for a permanent injunction to prohibit defendants from using plaintiff’s trade secrets. The district court further required defendants to reassign to plaintiff patents and patent applications that disclosed or were derived from plaintiff’s trade secrets as part of its equitable relief.

...

Read More

IP Newsflash

August 6, 2025

In ruling on a recent motion to strike, a judge in the Eastern District of Texas permitted a damages expert to rely on a damages theory based on defendant’s “avoided costs,” holding that this theory did not run afoul of the “entire market value rule.”

...

Read More

IP Newsflash

August 5, 2025

The Federal Circuit recently vacated a decision by the Patent Trial and Appeal Board after concluding that the board’s analysis of licensing evidence offered as a secondary consideration of nonobviousness constituted legal error and was not supported by substantial evidence. According to the court, the board applied a more exacting and improperly heightened nexus standard than is required by law for license evidence.

...

Read More

IP Newsflash

August 5, 2025

A Northern District of California judge recently granted a motion to reconsider his summary judgment ruling that defendant was barred from raising certain “device art” due to IPR estoppel under 35 U.S.C. § 315(e)(2). In the original ruling, the judge adopted the broader rule that IPR estoppel applies to device art that is “materially identical” to patents or printed publications that petitioners raised, or could have raised, in an IPR. Following that ruling, however, the Federal Circuit issued its Ingenico decision adopting the narrower view that IPR estoppel applies only to “grounds” based on patents and printed publications and not to device-based grounds. Citing Ingenico as a “change of law,” defendant moved for reconsideration of the court’s ruling, and the court granted the motion.

...

Read More

IP Newsflash

August 5, 2025

In a recent decision designated as Informative, the USPTO Director determined that the Patent Trial and Appeal Board abused its discretion by instituting two inter partes review proceedings challenging the same patent, based on petitions advancing different constructions of the same claim term. The Director expressed concerns that permitting multiple petitions based on alternative claim constructions effectively circumvents word count limitations, strains board resources, and undermines procedural efficiency.

...

Read More

IP Newsflash

July 25, 2025

Earlier this year, the Federal Circuit’s decision in Qualcomm Inc. v. Apple Inc. (Qualcomm II) raised questions about the extent to which petitioners can rely on applicant admitted prior art (“AAPA”) in inter partes review proceedings.  The Federal Circuit’s recent decision in Shockwave Medical, Inc. v. Cardiovascular Sys., Inc. largely cabins the Qualcomm II decision to its particular facts and makes clear that AAPA can be used as evidence of background knowledge as part of an obviousness argument.

...

Read More

IP Newsflash

July 11, 2025

The Federal Circuit recently reversed a PTAB determination on remand that a patent was obvious over applicant admitted prior art (“AAPA”) in combination with prior art patents, holding that expressly designating AAPA as a “basis” for a ground is improper under 35 U.S.C. § 311(b). In doing so, the Court rejected the PTAB’s “blanket rule” that “AAPA used in combination with prior art patents or printed publications under § 311(b) is ipso facto not the basis or part of the basis of a ground.” Ultimately, while the case clarifies that expressly listing AAPA in an IPR ground is improper, the precise line between proper and improper uses of AAPA in other instances remains unclear.

...

Read More

© 2025 Akin Gump Strauss Hauer & Feld LLP. All rights reserved. Attorney advertising. This document is distributed for informational use only; it does not constitute legal advice and should not be used as such. Prior results do not guarantee a similar outcome. Akin is the practicing name of Akin Gump LLP, a New York limited liability partnership authorized and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page.