Judge Albright will Keep the Google and Apple cases

In re Apple, 21-147 (Fed. Cir. August 4, 2021); In re Google, 21-144 (Fed. Cir. Aug 4, 2021)

Two mandamus cases regarding whether venue is proper in Judge Albright’s court in W.D. Texas.

Even though Apple has a $1 billion Austin Texas Campus and 8,000+ employees within the district, the company argued that litigating a patent case within the district would be truly inconvenient. In a prior decision, the Federal Circuit held that Apple’s extensive presence within the district should not be given much weight. In re Apple Inc., 979 F.3d 1332 (Fed. Cir. 2020). I would argue that decision was clearly wrong for convenient venue purposes.  The real answer here is that the plaintiff (Koss Corp) shopped for Judge Albright and the defendant is shopping for a different Judge (any other judge).  In a short opinion, the Federal Circuit has denied mandamus — finding that Apple did not show entitlement to the “extraordinary relief” of mandamus.

In Google, the court reiterated that “Google’s mere presence in the Western District of Texas insofar as it is not tethered to the events underlying the litigation is not entitled to weight in analyzing the local interest factor in this case.”  However, again the appellate court concluded that Google did not show that N.D.Cal. was clearly more convenient.

13 thoughts on “Judge Albright will Keep the Google and Apple cases

  1. 2

    Plus, it’s not abuse of discretion to try a case. Abuse is when a judge improperly dumps a case on another court allegedly for the “convenience of the parties and witnesses”.

    Plus the convenience analysis is total nonsense. Documents are electronic. The relative burden on witnesses is negligible. The defendant is a multibillion dollar corporation with private jets. All the pretrial work is done remotely or within 100 miles of the witness.

    Forcing the factory manager and engineering director and CEO of a small business to stop work to travel by bus or train to Marshall, Texas for a two week trial would be inconvenient, but nothing like that is happening in any of these cases. Instead it is a contrived academic analysis completely removed from reality.

    1. 2.1

      Looks like you think that there simply should not be a law of venue in patent cases. Fair enough, of course. I will not say that your arguments on this point are meritless. Congress, however, is the entity empowered to make that decision, and at least for the moment Congress has chosen that there be a law of venue in patent cases.

      The academics about whom you complain are really quite beside the point here. Unless and until Congress does away with the patent venue statute, courts will have to decide these questions according to the law that Congress has promulgated. If you dislike that, you must take it up with Congress. Grousing about the academy will get you nowhere.


          Josh, as previously noted, there are two different venue statutes involved, and it is the second of these involved here, not just the first which you are apparently considering. First, the patent-specific venue statute, 28 U.S.C. § 1404(b) which provides that an 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.” Secondly, just as in other civil cases, motions to TRANSFER venue in patent cases are governed by 28 U.S.C. § 1404(a) which provides: “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to another district court or division where it might have been brought.”


          Obviously if a party is moving that the case be transferred, then ipso facto, venue is being contested.


            Guys, there is jurisdiction in the western district of Texas. No one disputes that.

            The provision that is the subject of this post is “…a district court may transfer”.

            I don’t have any problems with this statute.

            Why is this so confusing?



              It has to do with HOW that discretion is actually practiced WHEN one of the parties DOES contest the provided venue with their motion to transfer – and how that motion is evaluated (even as that is a “MAY” as you indicate).


              Guys, there is jurisdiction in the western district of Texas. No one disputes that.

              Right. Near as I can tell, no one is contesting jurisdiction. Rather, they are contesting venue.

              The law of venue and the law of jurisdiction—while obviously related—are not the same thing. So long as Congress retains a provision in the statute that directs the physical location of the trial in a manner that goes beyond the constitutional rules governing personal jurisdiction, you are going to end up with situations in which the plaintiff’s choice of forum will sometimes not be honored, adequate jurisdiction notwithstanding. I can sympathize with your argument that the considerations that Congress has enunciated for deciding venue questions are less relevant today than they were when Congress promulgated them, but the exclusion of such considerations going forward is still a matter for Congress, not the courts, to weigh and settle.


                There is no dispute as to whether VENUE is proper in WDTX. There is no dispute that Apple has a regular and established place of business in WDTX.

                I think that makes most or all of your points and Paul’s points moot.

                There is a law — a statute — on venue and I acknowledge it. There is a holding by the Supreme Court on venue and acknowledge it. I did not intend to question the statutes or the Supreme Court’s holding. I apologize if that was not clear.

                What I disagree with is the argument here (which in other cases the Federal Circuit has upheld) — that it is an abuse of discretion to KEEP a case under any facts that have thus far been pled before Judge Albright. I disagree with that.

  2. 1

    The subject Apple mandamus venue transfer refusal actually has good support noted in the decision: “The district court considered the convenience factors and explained its reasoning at length. It noted that two non-party potential witnesses reside in the Western District of Texas who were unwilling to travel to California to testify,* Appx13, that Apple appeared to rely on a number of employee witnesses within the transferee venue that were not likely to be called at trial as well as employee witnesses residing hundreds of miles outside of the transferee venue, Appx17–18, and that one of the inventors was willing to travel from California to Texas to testify, Appx21. The district court further found that judicial economy considerations weighed against transfer because of co-pending lawsuits concerning the same patents in the same judicial division, ..”
    [I.e., unlike other cases in which employees [of any number] in the district that had nothing to do with the patent suit [not even possibly witnesses] logically do not count for venue convenience balancing.]

    1. 1.1

      Exactly. This looks like the right decision from the facts listed in the order (just as the decision the other day transferring out of WD Tex was the right decision on those facts). The whole point of venue law is to consider the convenience of witnesses and the logistics of moving documents. When the convenience of witnesses is best served by the case being in WD Tex, then the case should be in WD Tex, even if the defendant be headquartered in ND Cal.

      1. 1.1.1

        In the age of COVID (and Zoom trials), does location play all that much a role anymore?

        Should it?

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