In Re: Micron Technology, Inc., 875 F.3d 1091

Harvard sued Micron in D. Mass. for patent infringement (filed June 2016); Micron is incorporated in Delaware with its principal place of business in Idaho. Venue was asserted under 28 U.S.C. §§ 1391(b) and 1400(b).
Micron moved under Rule 12(b)(6) in August 2016 but did not assert a Rule 12(b)(3) venue objection at that time.
The Supreme Court decided TC Heartland in May 2017, holding that for § 1400(b) a domestic corporation "resides" only in its state of incorporation, thereby rejecting the view that § 1391(c)’s definition of "resides" governs § 1400(b).
After TC Heartland, Micron moved under § 1406(a) and Rule 12(b)(3) to dismiss or transfer for improper venue; the district court denied the motion, holding Micron waived the venue objection under Rules 12(g)(2) and 12(h)(1)(A).
The Federal Circuit granted mandamus to resolve whether TC Heartland effected a change in controlling law such that the venue defense was not "available" (and thus not waived) when omitted from Micron’s initial Rule 12 motion.
The court concluded TC Heartland changed controlling law so the venue defense was not "available" in August 2016, vacated the district court’s order denying the 12(b)(3) motion, and remanded for consideration of non-Rule12 forfeiture doctrines (timeliness, consent, etc.).

Issue	Plaintiff's Argument (Harvard)	Defendant's Argument (Micron)	Held
Whether Micron waived its § 1400(b) venue defense by omitting it from its initial Rule 12(b) motion	Micron waived the defense under Fed. R. Civ. P. 12(g)(2) and 12(h)(1)(A) because it failed to assert venue in its first motion	TC Heartland changed controlling law; the venue defense was not "available" when Micron filed its first motion, so Rule 12(g)(2)/(h)(1)(A) waiver does not apply	Held: Waiver under Rules 12(g)(2) and 12(h)(1)(A) is inapplicable because TC Heartland changed controlling law and the venue defense was not "available" at the time of the first motion
Whether the district court nonetheless may reject a newly asserted venue defense on other (non-Rule12) grounds such as forfeiture, timeliness, or consent	Harvard contends the court may find forfeiture based on untimeliness or conduct despite Rule 12 inapplicability	Micron argues no forfeiture applies; Rule 12(h)(1) is the relevant waiver mechanism and is inapplicable	Held: District courts retain authority (subject to Dietz limits and § 1406(b)) to find forfeiture for non-Rule12 reasons; case remanded to consider such arguments before reaching venue merits

TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017) (Supreme Court held § 1400(b) is not governed by § 1391(c) and a domestic corporation resides only in its state of incorporation for patent-venue purposes)
Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957) (pre-Fourco rule that § 1391(c) did not govern § 1400(b))
V.E. Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed. Cir. 1990) (Fed. Cir. precedent applying § 1391(c)’s definition of "resides" to § 1400(b))
In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017) (mandamus venue decision citing Rule 12 waiver issues post-TC Heartland)
Dietz v. Bouldin, 136 S. Ct. 1885 (2016) (recognizing district-court inherent authority to manage proceedings subject to limits of rules and statutes)
Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367 (2004) (standards for issuance of mandamus)
Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165 (1939) (venue is a privilege and may be lost by failure to assert it seasonably)