Egregious Delay and Blatant Disregard for Precedent

In re TracFone Wireless, Inc. (Fed. Cir. 2021)

On mandamus, the Federal Circuit has again found that Judge Albright clearly abused his discretion in failing to rule on TracFone’s motion to transfer its case out of the Western District of Texas and to a more convenient venue.

Although Judge Albright has promised rapid progression of patent infringement cases to trial, he has been sitting on transfer motions and leaving them undecided.  Here, the appellate panel repeated its prior statement that Judge Albright’s approach “amount[s] to egregious delay and blatant disregard for precedent.”

We order the district court to stay all proceedings until such time that it issues a ruling on the motion to transfer that provides a basis for its decision that is capable of meaningful appellate review.

The court went on to particularly order that Judge Albright issue an order within 30 days. The court also ordered “that all proceedings in the case are stayed until further notice.”  Presumably, this means that the this panel of Federal Circuit judges (REYNA, CHEN, and HUGHES) will maintain supervisory authority over the case throughout this process.

Precis Group filed the original lawsuit back in April 2020 and TracFone submitted its motion to dismiss/transfer in June 2020. Since that time, the case has proceeded without any ruling on the motions. In December, the court held a Markman hearing and issued a claim construction order. (Note here, it is only a 2-page order).  In any event, the case is well underway and Judge Albright understands many of the issues at stake in the litigation.  Of course, this experience through delay appears to be strategic on Judge Albright’s part because his familiarity with the case is a reason to deny a transfer of Venue.  The Federal Circuit panel looked to avoid rewarding Judge Albright for his “bad” behavior. Thus, the court explained that “any familiarity that [Judge Albright] has gained with the underlying litigation due to the progress of the case since the filing of the complaint is irrelevant when considering the transfer motion and should not color its decision.”

= = =

TracFone’s motion is both for lack of proper venue under 28 U.S.C. §1400(b) and inconvenient venue under 28 U.S.C. §1404(a).  Regarding proper venue, TracFone does not reside in TX — it is a Delaware corporation headquartered in Miami, Florida.  In addition, TracFone argues that it “does not have any place of business” in the W.D. Texas.  TracFone does sell its products throughout the district using, but it appears to no longer have a branded store.  Rather, its products are sold within other outlets such as 7-11, Dollar General and Joyeria y Discoteca Diana.  These “independently owned and operated stores” may have franchise rights that allow them to use TracFone’s trademarks and create contractual rights on behalf of the company, but the defendant argues those agreements do not result in TracFone having a “place of business” within the district.

85 thoughts on “Egregious Delay and Blatant Disregard for Precedent

    1. 8.1

      Happy now? He has complied “with precedent” in giving what the CAFC demanded.

      Or… would you have only been happy with a certain desired Ends?

    2. 8.2

      Thanks. Now that a transfer motion decision was forced, this prompt decision now contains a useful thorough evaluation of relevant venue transfer factors in this case re applicable case law.

      1. 8.2.1

        BTW, the average time delay from filing to trial in this court that is admitted in this motion decision may be useful for other parties re IPR discretionary denial decisions?

        1. 8.2.1.1

          Why would an average be dispositive to any particulars of an individual case?

  1. 7

    One of the things that people seem to miss here is that a district court has a duty as well to follow the Constitution and Scotus precedent.

    The CAFC is not supreme and–frankly–most district courts should deem the CAFC as a rogue court with inconsistent precedent and judicial activists judges so that there really is no precedent other than whatever comes to them they will decide to burn it down.

    1. 7.1

      Please stop trying to only place the blame on the CAFC.

      The blame needs to be emphasized as belonging with the judicial entity that spawned it (and then browbeat the CAFC): the Supreme Court.

    2. 7.2

      You know, this appears to have been an opportunity for the “pro-patent” side to demonstrate some consistency. You guys could’ve gone with something like “I denounce any judge who bends precedent to suit his whims including this one who appears to be currently bending things to help my side.” The lack of such sentiments being expressed is very telling.

      1. 7.2.1

        There is a strong presumption that anything from the CAFC is wrong.

        You must first rebut that presumption.

        But ole Ben is on target with his rhetoric right from K Street.

        1. 7.2.1.1

          I think you’re better than relying on silly rules of convenience. Rough week?

        2. 7.2.1.2

          I thought the presumption was the Supreme Court is wrong because patent law is too special to be understood by lay justices.

          1. 7.2.1.2.1

            Why would you think that both presumptions could not apply?

      2. 7.2.2

        … as if your anti-patent bent EVER has any pro-patent comments….

  2. 6

    Hey, it looks like Albright issued an order the day after the CAFC’s Tracfone order.

    link to courtlistener.com

    His transfer denial in SK hynix came out the day after the CAFC order was issued. Anyone with a PACER account want to acquire this order for the class?

    1. 6.1

      As far as I can tell, you’re referring to this:
      “47 Mar 9, 2021 Main Doc­ument Order”

      That’s just the Federal Circuit’s mandamus order posting to the district court docket. I don’t think Albright has ruled yet.

      1. 6.1.1

        Ah. Pity.

      2. 6.1.2

        There’s now an item 48: “Order on Motion to Transfer Case AND Order on Motion to Dismiss.”

  3. 5

    “Blatant Disregard for Precedent”

    Oh, I see. But it’s O.K. for them to blatantly disregard the Supreme Court’s Alice / Mayo eligibility test . . . including to “tread lightly?”

    Hypocrites.

  4. 4

    Dumb question — what is the motivation for Judge Albright to want to have patent cases filed in the Western District of Texas or to keep them there once filed?

    1. 4.1

      His motivation? Simple.

      Because he — unlike too many others — strongly believes in giving patent owners a fair shake — a fair hearing — of their case.

      1. 4.1.1

        There are a lot of people that know that the core of the success of the USA has been a strong IP system.

        What is happening is that these corporations that are near monopolies have spent hundreds of millions on PR to weaken IP.

        We have seen that with “professors” being paid to write papers saying that IP is bad, with people like Mark Lemley who admitted to the New York Times that destroying patents has made him 10’s of millions of dollars, and there are many other examples. There is no reality to the things the CAFC or the Scotus say.

        Anyone that has actually done real work in this area knows that this is just destructive to our country.

        1. 4.1.1.1

          … and the lemmings like Ben keep on marching up that hill with cheers for ANY news that sounds like an anti-patent victory.

          1. 4.1.1.1.1

            Ben has way too much time to spend on here and his posts are too sophisticated for him to be anything but a paid blogger.

            He might also be a patent examiner. Don’t forget that the federal government is fine with people have multiple jobs as they figure that their “primary” job with the federal government is really part-time work.

            1. 4.1.1.1.1.1

              I will fully disagree with you that Ben’s posts are even remotely sophisticated.

              That said, I will not discount the possibility (no matter how slight), that Ben has a skin in the game for “preaching” from a script.

            2. 4.1.1.1.1.2

              This website would be missing its spice if we were to one day lose this blatant conspiracy mongering. Keep up the good work, NW and Anon.

              1. 4.1.1.1.1.2.1

                Ordinary >”conspiracy mongering”

                Except I give evidence of why I believe that and I have posted articles about Google paying professors to write anti-IP papers to their abstracts and I have linked to articles about how K Street has a flood of paid bloggers on pretty much every website of importance.

                But nice smear. And what is the “conspiracy”?

                1. No offense intended, but conspiracy mongers are always impressed by the value of their own evidence. Remember all the evidence being presented that “steel melts at 1500C”?

                  I don’t think “has evidence” is a sufficient condition for not being a conspiracy quack.

                2. I don’t think “has evidence” is a sufficient condition for not being a conspiracy quack.

                  LOL – oh, and what do you think does? Believing in the politically correct things?

              2. 4.1.1.1.1.2.2

                The fact is Squirrelly that it would be great surprise if there weren’t paid blogger on this blog. Just read about K Street. And read about the money spends on K Street.

                But keep those smears up.

                1. To assume paid bloggers in these blog comments is to assume [with no support] that mere commentators on this specialized blog have any real political influence, and to further make an illogical assumption that lobbying money is better spent here than in activities with those that do have influence, such as members of Congress, the AIPLA, ABA, IPO, NAM, NCOC, other trade organizations, editorials and letters in the NYT or WSJ, etc.

                2. “The fact is Squirrelly that it would be great surprise if there weren’t paid blogger on this blog.”

                  It would be a surprise to me if anyone was being paid to comment here.

                  That’s partially a function of how unimportant patently-O is in the scheme of things (No offense intended, Crouch). But more importantly, it’s just not how paid disinformation works online.

                  Look into how the CCCP invests it’s paid commenter resources. They don’t use long-time aliases to bicker at length with opponents.

                  Instead they astroturf quick comments of bland support. This is because changing minds is hard, but giving an impression of consensus is relatively easy.

                  We don’t get inundated with posts from new aliases with brief comments like “I agree 101 is good” or “I’m so grateful the courts are taking care of NPEs.” As such, I conclude that the posts here are relative organic.

                3. Paul and Ben you two are such wa nkies.

                  Look, I’ve illustrated proof in the form of repeated arguments that conform to the outline of the anti-patent arguments. That is evidence.

                  And I have linked on here before to job offerings for people to be paid to run teams of anti-patent bloggers. The job announcement had things like creating templates for the bloggers to follow. The organization is a non-profit in DC that is funded by SV.

                  And, wan k b o ys, I have first hand experience of SV paying lawyers to do exactly this type of thing.

                4. And Paul and Ben, the tin-hat people are you. You think that you can discount people by saying “conspiracy”. What nonsense. Do you two even know what a conspiracy is? Let’s see Google and Microsoft admitted to the DOJ that they conspired (were in a conspiracy) not to offer each other’s employees employment. I could list 100 other similar conspiracies.

                  And how is what I am saying even a conspiracy? I have linked to non-profit that pay people to blog against patents and illustrated that they do so with scripts they follow.

                  I have illustrated that Ben consistently follows the anti-patent party line and I believe he is doing so based on these scripts.

                  And you two say that I am a conspiracy person. What a lame intellectually void pair you are.

                5. If intellectualism means calling people “wan k b o ys”, I can accept not being an intellectual.

                6. damm the filters are busy.

                  In pieces then

                  You think that you can discount people by saying “c0n sp1r acy”.

                7. It is clearly a type of ad hominem fallacy, discrediting but not directed to the direct points at hand.

                8. Ben >If intellectualism means calling people “wan k b o ys”, I can accept not being an intellectual.

                  So wan k b o y completely avoids all the substantive issues.

                  The name I gave him is fitting.

                9. I love the way trying to smear me as a conspiracy theorist is someone OK but being called a w a n k i e b o y isn’t.

                10. Night Writer,

                  Doncha know that it is always “ok” when that other person is doing the accusing, but never “ok” when the tables are turned?

                  Sort of like his (duplicitous) comment about “pro-patent” people speaking up and against the judge in Texas (because, that judge MUST BE ‘bad’).

                  Same guy that melts when anything “harsh” his way comes (and yet up-voted Malcolm at every turn back in the day, no matter how harsh Malcolm was).

              3. 4.1.1.1.1.2.3

                Reply blocked.

                OSitA must be delicate.

                1. You are not incorrect.

                  That being said, you really have not overly infected THIS thread with your games, now have you?

                2. You are welcome.

                  A question might be then, are you going to re-engage the same games that just saw a reduction of 154 posts to clean up the mess that you created?

                3. 154 [sic] posts?

                  So let us all under stand the sort of things Hall Monitor is proud of.

                  Hall Monitor squealed to management that he didn’t like what some mean people were saying to him and he was rewarded in getting 154/2 = 77 of his incredibly important “thoughts” deleted.

                4. Hall Monitor squealed to management that he didn’t like what some mean people were saying to him and he was rewarded in getting 154/2 = 77 of his incredibly important “thoughts” deleted.

                  And your point is?

                5. My point is the one already and well explicitly expressed:

                  Your choices display a troubling mode of cyberstalking.

                  Still to date this year**, you have a 100% / 0% combination.

                  **with an over 98% all-time onsess10n over me factor.

                6. What is this obsession you have about numbers? Have the mean people said mean things to you?

                7. Painting the provision of objective facts as some type of obsess10n— while those facts merely highlight your own obsess10n is really quite perverse.

                  Why do you feel the need to post like that?

                8. Because we need to stand against those mean people who say mean things about you,Snowflake. You do, of course, not disagree.

                  Unless you this gives you the vapors. Then you need to report it to management.

                9. More false presumption gamery from you, Shifty.

                  Y
                  A
                  W
                  N

                  It simply has never been about ‘mean to.’

                  You do even understand what cyber-stalking entails?

                10. So “false presumption” is your auotomated scripted phrase for the day to avoid uncomfortable questions.

                  We asked another of the anons if that one was aware of the statutory (or at least “legal”) definition of “cyberstalking” with the vain hope that that one might explain how publicly responding to “deep thoughts” typed in a public forum cannot be a convenient lay re-definition of “cyberstalking.”

                  That anon, of course, will not respond. Nor will you, of course.

                  You likely will, however, wahh wahhh wahh to management because those mean people are saying mean things to you again.

                11. Not at all.

                  It only appears “automated” because YOU apply the same game over — currently — 13 different thread.

                  The response is accurate.

                  I do ‘get’ that you may not like that, but that is simply too bad.

                12. Horrors!!! This anon of course cannot defend his or the other anons attempted lay re-definition of “cyberstalking.”

                  But this anon will wahh wahh wahh to management because those mean people are saying mean things about me again!

                13. Off point

                  Again.

                  False presumptions.

                  Again

                  Have you been able to reduce your ga y kiddie clown p0 rn consumption to under five hours a day yet?

                  Why not?

                14. So you claim to have some link to some pseudo-legal definition of cyberstalking. Can this anon reproduce that definition and apply the present facts to establish that typing answers in a public forum to typing in a public forum constitutes “cyberstalking?”

                  This anon, of course, will not. Because this anon cannot. Nor can any of the anons.

                  Maybe they should take a class in US law.

                15. Are you now embarrassed
                  by your inability to reduce your ga y kiddie clown p0 rn consumption to under five hours a day yet?

                16. “or are you going to assert ( ) that this too is somehow “automated”…?

                  – and I am pretty sure that you don’t know any to invoke ANY “Day x” meme, as that would be very Telling of your own game of obsess10n – what day of the year is it with YOU still at that 100% to or about me factor?”

                  Nobody knows what it is you think you are talking about, this anon. Not even the other anons.

                17. Where is THIS coming from?

                  Are you playing with your random-insertion generator game again?

                  Oh wait – it comes from: link to patentlyo.com

                  And yet another game of yours for ‘last word” that you have been SMOKED on.

                  You really might want to consider obtaining plans from somewhere other than ACME.

                  Beep Beep.

                18. “I do enjoy when your choice of post celebrates your own game-playing defeat.”

                  Thanks $$$

                19. “Where is THIS coming from?”

                  From one of the other anons. You really need to go to some of the anon meetings.

                20. From one of the anons…?

                  Boy, did you miss the point there.

                  No, the “where” is from YET ANOTHER thread in which your game of “post last” has
                  F
                  A
                  I
                  L
                  E
                  D

                  I believe that one was the eleventh this year.

                  (and yes – in every single one of those, the plain fact in regard to YOUR choices are:
                  100 % to or about me AND
                  0% on point to the topic of the thread or any patent law issue.

                  There is NO legitimate purpose to YOUR obsess10n.

                21. Clearly, you confuse “run to” and “run away.”

                  Here’s a hint: YOU have 100% of your posts to or about me.

                  I do not have anywhere close to that in return. All you have to do is actually pay attention to my other posts (the ones that are not wrecking YOUR games).

                22. Ever get tired of having your ass handed to you, Snowflake? Apparently so. Hence, the wahh wahh wahh to management.

                23. … and yet another multi-false presumption.

                  It is just plain dullsville at this point from you.

    2. 4.2

      “I didn’t come to this job to retire,” Albright said. “I came to this job and I took this job in Waco because I thought it was the perfect place to try and establish a serious venue for sophisticated patent litigation, and it has proven to be just that.

      “There is nothing I enjoy more than working on patent cases.”

      (From the Waco Tribune article linked in link to patentlyo.com )

      1. 4.2.1

        Thanks, Ben.

  5. 3

    This case references SK hynix, where the CAFC similarly ordered a stay while the transfer motion was being decided. Albright issued his transfer denial the day after that order, and the CAFC upheld the denial. That second SK hynix panel noted that “[t]he court also again cited its own experience with the case since the filing and briefing of the motion to transfer.”

  6. 2

    >>We order the district court to stay all proceedings until such time that it issues a ruling on the motion to transfer that provides a basis for its decision that is capable of meaningful appellate review.

    You have to wonder why anyone should follow the orders of the CAFC given their judicial activism. The bandits have given you an order to do something. The third-world country court of the USA has sent you an order. Likely it reads something like we hold the order from this here Texas court are all directed to the abstract idea of serving justice without nothing. We therefore hold them all abstract and null and void.

    1. 2.1

      We the CAFC don’t need nuttin’ more than the Alice decision to do anything we want.

    2. 2.2

      NW, is this paragraph of the decision wrong?
      ——-
      “Our decisions in Google and SK hynix rest on a principle well-established in Fifth Circuit law: That district courts must give promptly filed transfer motions “top priority” before resolving the substantive issues in the case. In re Horseshoe Entm’t, 337 F.3d 429, 433 (5th Cir. 2003) (“[I]n our view disposition of that [transfer] motion should have taken a top priority in the handling of this case by the. . . District Court.”); see also In re Apple, Inc., 979 F.3d 1332, 1337 (Fed. Cir. 2020 (explaining that “once a party files a transfer motion, disposing of that motion should un-questionably take top priority.”); In re Nintendo Co., Ltd. 544 F. App’x 934, 941 (Fed. Cir. 2013) (“[A] trial court must first address whether it is a proper and convenient venue before addressing any substantive portion of the case.”).
      ——-

      1. 2.2.1

        Who knows with these bandits. I’d have to spend a few minutes and read through it and it wouldn’t matter if it was wrong as the Scotus wouldn’t take cert.

      2. 2.2.2

        Anon and NW, please note, from dcl 2.2 here, that as I had said before, the Fed. Cir. is properly applying 5th Cir. nor Fed. Cir. law here [That also includes a prior key 5th Cir. non-patent VW venue transfer decision against a EDTX venue transfer refusal]. This is now the THIRD mandamus for legally improper Waco WDTX J. Albright handling of venue transfer motions, and not surprisingly they seem to be getting fed up. This case is particularly egregious if it directly violates the patent suit venue statute 28 U.S.C. §1400(b), not just retaining inconvenient venue under 28 U.S.C. §1404(a).
        [P.S. I would think the WDTX Chief Judge would be aware of this by now? Are the PTAB APJs who are handing out all those discretionary IPR institution denials in Waco cases?]

        1. 2.2.2.1

          Why drag me into this, Paul?

          Have I said anything otherwise to your 5th circuit position?

        2. 2.2.2.2

          …. maybe you should take yourself to task, as YOU seem eager to jump against your own 5th circuit control with the insertion of:

          This case is particularly egregious if it directly violates the patent suit venue statute 28 U.S.C. §1400(b)

        3. 2.2.2.3

          Paul, I haven’t read the opinion or figured this one out.

          I will say that about 1/2 the time when I do bother reading the trashy crxp that comes out of the CAFC that I find it to be outrageous and judicial activism.

          I may take the time to read this but the odds are it is like everything else from those POS and just trash. They need to retire and take their retirement jobs in SV.

  7. 1

    Samsung called. They want to know where to site their ice rink.

    1. 1.1

      Great joke Marin, for all those familiar with that feature of the EDTX patent litigation Valhalla before it was usurped by WDTX. [Proposed response: build the Samsung ice rink right in front of the Confederate rebel solder statute.]
      NW, with your assertions of lawlessness expressed above, perhaps you might like a judicial appointment for defense work for Congressional invaders? Hundreds of defense attorneys are needed.

      1. 1.1.1

        P.S. you could get Sidney Powell to assist you, since the Texas Bar Association seems to be still fine so far as I have heard with her being an acceptable example of Texas lawyers.

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