On Monday, June 13, 2022, the Federal Circuit issued an opinion in Univ. of Mass. v. L’Oréal S.A. that signals a new trend in allowing a patentee the benefit of jurisdictional discovery prior to ruling on a foreign defendant’s motion to dismiss for lack of personal jurisdiction.

Surviving a 12(b)(2) motion to dismiss for lack of personal jurisdiction can be a tall order for plaintiffs asserting patent infringement against a foreign defendant. At this early juncture of litigation, foreign defendants seem remote or attenuated from direct acts of infringement in the United States. Often, foreign defendants appear insulated from having established contacts within the United States by hiding behind global supply chains and/or moving the accused products through multiple distribution partners.

However, in Univ. of Mass. v. L’Oréal S.A., the Federal Circuit signaled that patentees are generally entitled to jurisdictional discovery prior to a dispositive ruling on a motion to dismiss. As long as a patentee has “made more than clearly frivolous, bare allegations” that a foreign defendant has either (1) introduced the accused products into the United States’ stream of commerce or (2) operated as a principal in a United States-based agency relationship, then the patentee is entitled to jurisdictional discovery before a ruling on a motion to dismiss is made.

TAKEAWAY

If a patentee raises the possibility that discovery may uncover a foreign defendant's contacts with the United States, that patentee is entitled to jurisdictional discovery before a ruling on a motion to dismiss is made.