Topic list: Venue and section 101. Dual-track ITC filings. Skipped patent-dance biosimilar suits. Marking pleas for back damages. Foundry settlements at the ITC.

Search tags: #faq #litigation #venue #section101 #itc #dual-track #bpcia #marking #settlement #foundry

Q1. If the court says venue is wrong, can it still decide section 101? #venue #section101

What the court held: In AML IP, LLC v. Bath & Body Works Direct, Inc., No. 2025-1280 (Fed. Cir. Aug. 28, 2026), the Federal Circuit said a district court may decide a section 101 dismissal even after it finds venue improper, when both issues were briefed together. Venue can be waived. It is not like losing all power the way a court does when it lacks subject-matter jurisdiction. The appeals court did not decide whether that 101 ruling later blocks other cases.

What it means in practice: A defendant who argues both venue and section 101 at once may win both in one order. A plaintiff should not assume the 101 piece disappears just because venue fails.

An easy mistake is thinking a venue loss automatically erases the 101 ruling. A safer view is to treat a same-order 101 dismissal as a real risk until another court says otherwise.

Q2. What is a dual-track district and ITC fight? #itc #dual-track

What was filed: On Sept. 3, 2026, trinamiX Sensing LLC sued Apple in the Western District of Texas on seven Face ID skin and material-detection patents. On Sept. 4, 2026, the ITC posted a receipt notice for DN 3934 naming Apple as the only respondent. That notice asks for an import ban and related orders. It does not list patent numbers, and it is not yet a full investigation.

What it means in practice: The district case can seek money and an injunction. The ITC path can seek to block imports. A receipt notice is only the start. Wait for institution before assuming which patents are in the ITC case.

An easy mistake is treating DN 3934 as if it already instituted an investigation on those seven patents. A safer view is that the district patents are pleaded, while the ITC patent list is not public in the receipt notice.

Q3. What is a skipped-dance biosimilar lawsuit? #bpcia

What was filed: In Takeda Pharmaceuticals USA, Inc. v. Alvotech hf., D.N.J. No. 2:26-cv-11301 (filed Sept. 1, 2026), Takeda says Alvotech filed a biosimilar application for an Entyvio competitor, then withheld the password needed to review that application. Takeda says that meant no required document exchange under the BPCIA, so it sued on six method patents right away.

What it means in practice: The biosimilar statute has a patent "dance" of document exchanges. If the dance never starts because materials are withheld, the brand company may still sue under the statute's failure-to-provide path. Method patents often turn on product labeling and who encourages doctors or patients to follow patented methods.

An easy mistake is thinking "no dance yet" means "no lawsuit yet." A safer view is that a refused handoff of the application can be the reason the lawsuit begins.

Q4. What must a complaint say about marking if the patent owner wants back damages? #marking

What the court held: In VDPP v. Volkswagen, No. 2024-2226 (Fed. Cir. Aug. 19, 2026), a patent owner that did not make products still had to plead that its licensees marked patented articles if it wanted damages from before the suit. Settlement licenses counted. The court also affirmed a large fee award against the patent owner on that record.

What it means in practice: Plaintiffs need real marking facts in the complaint, not a bare "we do not make products" line. Defendants can challenge thin marking pleas early.

An easy mistake is pleading only that the plaintiff is a non-practicing entity. A stronger approach, when the facts exist, is pleading what licensees did to mark, or what reasonable efforts were made.

Q5. Can a settlement with a chip foundry end an ITC case against customers? #itc #settlement

What happened: In ITC investigation 337-TA-1443, the Commission on Sept. 3, 2026 left in place an order ending the whole case after Longitude and Marlin settled with TSMC. The remaining respondents were treated as TSMC customers. Apple had already left the case on an earlier settlement.

What it means in practice: If the case theory runs through a foundry, settling with that foundry can clear customers too. Those customers may exit even if they never signed their own deal. The public notice often will not reveal the settlement terms.