The question presented is whether 28 U.S.C. § 1400(b), 28 U.S.C.A. § 1400(b), is the sole and exclusive provision governing venue in patent infringement actions, or whether that section is supplemented by 28 U.S.C. § 1391(c), 28 U.S.C.A. § 1391(c).
Section 1400 is title 'Patents and copyrights,' and subsection (b) reads:
'(b) Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.'
Section 1391 is titled 'Venue generally,' and subsection (c) reads:
'(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.'
Petitioner, Fourco Glass Company, a West Virginia corporation, was sued for patent infringement in the Southern District of New York. It moved to dismiss for lack of venue, because, although it had a regularly established place of business in the district of suit, there was no showing that it had committed any of the alleged acts of infringement there. The District Court held that there had been no showing of any acts of infringement in the district of suit and that venue in patent infringement actions is solely and exclusively governed by § 1400(b), as a special and specific venue statute applicable to that species of litigation. It accordingly granted the motion and dismissed the action. 133 F.Supp. 531. The Court of Appeals, without passing on the District Court's ruling that there had been no showing of acts of infringement in the district of suit, reversed, 233 F.2d 885, 886, holding that proper construction 'requires * * * the insertion in' § 1400(b) 'of the definition of corporate residence from' § 1391(c), and that the two sections, when thus 'read together,' mean 'that this defendant may be sued in New York, where it 'is doing business." We granted certiorari because of an asserted conflict with this Court's decision in Stonite Products Co. v. Melvin Lloyd Co., 315 U.S. 561, 62 S.Ct. 780, 86 L.Ed. 1026, and to resolve a conflict among the circuits upon the question of venue in patent infringement litigation.
We start our considerations with the Stonite case. The question there-not legally distinguishable from the question here was whether the venue statute applying specifically to patent infringement litigation (then § 48 of the Judicial Code, 28 U.S.C. (1940 ed.) § 109) was the sole provision governing venue in those cases, or whether that section was to be supplemented by what was then § 52 of the Judicial Code, 28 U.S.C. (1940 ed.) § 113, which authorized-just as its recodified counterpart, 28 U.S.C. § 1392(a), 28 U.S.C.A. § 1392(a), does now-an action, not of a local nature, against two or more defendants residing in different judicial districts within the same state, to be brought in either district. That supplementation, if permissible, would have fixed venue over Stonite Products Company (an inhabitant of the Eastern District of Pennsylvania) in the District Court for the Western District of Pennsylvania, where the suit was brought, because its codefendant was an inhabitant of that district.
After reviewing the history of, and the reasons and purposes for, the adoption by Congress of the venue statute applying specifically to patent infringement suits-ground wholly unnecessary to replow here-this Court held 'that Section 48 is the exclusive provision controlling venue in patent infringement proceedings' and 'that Congress did not intend the Act of 1897 (which had become § 48 of the Judicial Code, 28 U.S.C. (1940 ed.) § 109) to dovetail with the general provisions relating to the venue of civil suits, but rather that it alone should control venue in patent infringement proceedings.'
The soundness of the Stonite case is not here assailed, and, unless there has been a substantial change in what was § 48 of the Judicial Code at the time the Stonite case was decided, on March 9, 1942, it is evident that that statute would still constitute 'the exclusive provision controlling venue in patent infringement proceedings.'
The question here, then, is simply whether there has been a substantive change in that statute since the Stonite case. If there has been such change, it occurred in the 1948 revision and recodification of the Judicial Code. At the time of the Stonite case the venue provisions of that statute (§ 48 of the 1911 Judicial Code, 28 U.S.C. (1940 ed.) § 109) read: