is a Partner at Baker Botts, in their New York Office. Her practice focuses on patent litigation. She has significant experience with all phases of district court litigation in various jurisdictions, including discovery, Markman hearings, summary judgment, trial and appeals. She has also litigated patent infringement disputes before the International Trade Commission. Ms. Tempesta is well-versed in appellate practice and has argued at the Court of Appeals for the Federal Circuit. Ms. Tempesta also handles post-grant proceedings, patent prosecution, opinions and client counseling. She represents clients in a number of fields, including pharmaceuticals, chemicals and various advanced technologies.
For more information or to contact Ms. Tempesta, please visit her Firm Profile Page.
Under the Federal Rules of Civil Procedure, a party waives its right to assert a defense of improper venue when it fails to raise the defense in a pleading or with other Rule 12 motions. Importantly, however, that waiver only takes effect if the defense was “available” to the party at the time of filing either the pleading or motion. Many circuits, including the Federal Circuit, interpret that requirement by recognizing an intervening law exception to the waiver of a defense, whereby an intervening change in law makes available a defense that had not previously been available. Does the Supreme Court’s decision in TC Heartland constitute a change in the law? Was the defense of improper venue unavailable until May 22, 2017?