Judge Sleet has issued an interesting order regarding the changing landscape of motions to dismiss for lack of personal jurisdiction in patent cases. At issue was whether each defendant satisfied the Delaware long-arm statute by demonstrating an “intent to serve the Delaware market” or “purposefully direct[ing] activities at residents of the forum.” Blackbird Tech LLC v. Sakka’s Stores, Inc., et al., C.A. No. 14-1256-GMS, Or. at 1-2 (D. Del. July 21, 2015). Judge Sleet explained the relevant precedent: “Previously, Delaware courts indicated that ‘[a] non-resident firm’s intent to serve the United States market is sufficient to establish an intent to serve the Delaware market, unless there is evidence that the firm intended to exclude from its marketing and distribution efforts some portion of the country that includes Delaware.’” Id. at 2 (citing Graphics Props. Holdings, Inc. v. ASUS Computer Int’l, No. 13-864-LPS, 2014 WL 4949589, at *3 (D. Del. Sept. 29, 2014). His Honor continued: “The court is not convinced this statement remains good law in the due process context” in light of various recent cases, including the Supreme Court’s proclamation that a plaintiff must prove purposeful availment by showing “‘regular flow or regular course of sales’ in the forum state or ‘something more’ such as special state-related design, advertising, advice, marketing, or anything else.” Id. at 2-3 (quoting J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2792 (2011)).
The plaintiff also requested jurisdictional discovery. Although Judge Sleet found that there had not been a showing of intent to serve the Delaware market or purposeful availment of Delaware’s laws, the plaintiff’s request for jurisdictional discovery was not “clearly frivolous” in light of the defendants’ acknowledgement “that their accused products have been shipped to Delaware customers.” Id. at 3-4. Accordingly, Judge Sleet allowed the jurisdictional discovery and held the motions to dismiss in abeyance.