Extraordinary Writ or Ordinary Remedy? Mandamus at the Federal Circuit – Part 3

By Jonas Anderson, Paul Gugliuzza, and Jason Rantanen

This is the final post in a series about our new research project on mandamus practice in the federal courts of appeals generally and the Federal Circuit’s peculiar use of mandamus in patent cases specifically.  The two previous posts can be found here and here.

 

Even if a plaintiff has filed its case in a federal court in which personal jurisdiction and venue exist, 28 U.S.C. § 1404(a) permits the judge to transfer the case to another district “[f]or the convenience of parties and witnesses, in the interest of justice.” Transfer motions under § 1404(a) are a common tactic in patent litigation, particularly for California-based tech companies sued in the Eastern and Western Districts of Texas. When defendants lose those motions—as they often do in Texas—they frequently seek immediate review in the Federal Circuit by petitioning for a writ of mandamus.

Despite the writ’s extraordinary nature, our study shows that it’s a remarkably ordinary form of relief in the Federal Circuit—at least in cases involving denials of transfer by the Eastern or Western District of Texas. The first time the Federal Circuit ever granted mandamus to overturn a transfer denial was in 2008, in a case called In re TS Tech, which arose from the Eastern District of Texas. Since that time, the Federal Circuit has decided 105 mandamus petitions seeking to overturn a denial of transfer under § 1404(a). It has granted 34 of them, for a grant rate of 32.4%. Pretty high for an extraordinary writ that’s supposed to issue only if the lower court’s decision was a “clear abuse of discretion” that “produced a patently erroneous result,” as the Federal Circuit wrote in a 2009 decision, In re Genentech. (Cleaned up.) The figure below shows the outcomes of decisions on mandamus petitions challenging § 1404(a) transfer denials decided by the Federal Circuit each year since 2008.

Figure 1: Mandamus decisions by the Federal Circuit involving challenges to 1404(a) decisions

Mandamus petitions arising from the Eastern and Western Districts of Texas account for the vast majority of petitions challenging transfer denial: 88 of the 105 in our dataset (83.8%). The grant rate for mandamus petitions challenging transfer denials by those two districts is 35.2%. And for the Western District of Texas alone, the grant rate is a whopping 52.0% (13 grants, 12 denials). For all districts besides the Eastern and Western Districts of Texas, the grant rate is a mere 17.6% (3 grants, 14 denials). The table below shows, by district court of origin, the number of mandamus petitions decided by the Federal Circuit seeking review of a decision denying transfer under § 1404(a), along with the corresponding Federal Circuit grant rates. As you can see, the sheer number of petitions (and grants) from the Eastern and Western Districts of Texas dwarfs all other districts.The recent explosion of patent cases in the Western District of Texas is fueled entirely by Judge Alan Albright who, as Jonas and I have written, has actively encouraged patentees to file infringement suits in his Waco courtroom and has adopted numerous procedural practices that are attractive to forum-shopping patentees—to say nothing of the fact that the Western District’s lack of random case assignment allows patentees to know, with absolute certainty, that Judge Albright will hear their case.

When we exclude the two Western District mandamus petitions that didn’t involve Judge Albright, the grant rate gets even higher. For mandamus petitions challenging transfer denials by Judge Albright, the Federal Circuit’s grant rate is 56.5% (13 grants, 10 denials). And that grant rate excludes one petition, In re DISH Network, which the Federal Circuit nominally denied but effectively granted by demanding that Judge Albright “reconsider” his transfer denial in light of the “appropriate legal standard and precedent,” which the Federal Circuit outlined in its opinion denying the writ.

*          *          *

The Federal Circuit is exceptional among the federal courts of appeals in using an extraordinary writ to engage in what is essentially interlocutory error correction. On first glance, we might view this as a flaw with the Federal Circuit: the specialized court is too zealously exercising its final authority over patent law and wasting party and judicial resources by policing discretionary district court rulings on an issue that’s entirely separate from the merits of the case. But Judge Albright’s aggressive efforts to attract patent cases to Waco—and his seeming disregard of appellate precedent on transfer of venue—have forced the Federal Circuit’s hand. Predictable judge assignments have encouraged what is essentially a race to the bottom among district judges who want to attract patent infringement plaintiffs. The mechanism for competition is procedural rules—and procedural rulings—that are extremely favorable to plaintiffs. And so the stakes over transfer of venue decisions are unusually high in patent cases. This suggests that the writ of mandamus—a procedural mechanism from the dustiest corner of civil procedure—will play a crucial role in determining the future of the U.S. patent system.

60 thoughts on “Extraordinary Writ or Ordinary Remedy? Mandamus at the Federal Circuit – Part 3

  1. 10

    GREAT ARTICLE! Keep it up

  2. 9

    I find it offensive to personally attack Prof. Crouch and Jason for doing an excellent job running this blog and teaching law students which is exhausting. Lawyers have a duty of civility toward one another which includes Prof. Crouch and Jason. Lets stick to a discussion of patent law and be professional.

    1. 9.1

      +1

    2. 9.2

      What you find offensive is itself offensive.

      Grow a pair.

      Yours,

      “John Maynard Keynes”

    3. 9.3

      Yes, it is especially unprofessional of persons claiming to be attorneys to regularly misuse this blog’s comments for entirely non-substantive anonymous hostility outlets, including personal insults, that would get them properly fined or jailed for contempt in many courts.

      1. 9.3.1

        Lol — maybe you’ve heard of this thing called freedom of expression, Paul.

        You do realize that behavior in a court is a distinct thing NOT to be confused with the rough and tumble of active interchanges, eh?

        Maybe buckle up sunshine and read some John Maynard Keynes.

      2. 9.3.2

        This is not a court. This is Dennis’s blog. What gets permitted (or not) is totally up to Dennis (and his proxies).

        1. 9.3.2.1

          Worse – the idea that “politeness” should control conversations is OFTEN advanced by those who simply do not fully engage on the merits.

          Be it Greg “I Use My Real Name” DeLassus, who pouts over being taken to the woodshed, or Paul “I won’t discuss Constitutional issues but will snipe from the sidelines” F. Morgan, or any of the others who through the years have attempted a “polite-style heckler’s veto,” the answer is — and has always been — ‘fight’ the battle with better points.

          NONE of these people have the better points.

        2. 9.3.2.2

          Sure, of course you are correct that the minimally acceptable standards of conduct permissible around these parts are lower than the minimally acceptable standards in a court. Still and all, JR is correct that it is unprofessional—and bad manners—to attack the blog hosts in the comments. That sort of behavior marks one as a boor, even if it does not rise to the level of sanctionable misconduct.

          1. 9.3.2.2.1

            oooooohhhh – “bad manners”

            Watch out, the “bad manners police” are going to be called.

  3. 8

    CAFC: Mandamiss. Again and again and again.

  4. 7

    In what way are the rules favorable to plaintiffs?

    1. 7.1

      Now Josh, surely you ‘know’ that anything not outright in favor of Efficient Infringement is by definition “favorable to the [patent-holding] plaintiff.

      It’s not like these people want to encourage people to actually have patents after all (or at least, to — gasp — try to enforce them).

  5. 6

    “Congress has told them to pay attention to this detail.”

    You sure about this? I don’t see it in 1404, and they didn’t come up in a brief search of title 28.

    1. 6.1

      Whoops. Intended as a response to 3.4.

    2. 6.2

      Good catch. I am getting my multi-factor balancing tests confused. The factors for the §1404 analysis come not from the statutory text itself but from in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) (which Congress is presumed to have incorporated under Kimble v. Marvel Entertainment, 576 U.S. 446 (2015)).

      One way or the other, though, my broader point still holds. WT’s beef is not really with the CAFC, but rather with the higher authority whose rules the CAFC is merely applying, as it is obliged to do.

      1. 6.2.1

        Presumed to have been incorporated under Kimble….?

        Really?

  6. 5

    Mandamus, She Writ

    (Yup, that’s all! I have no substantive comment to make. 😀)

  7. 4

    Pleased to see this statistical study finally arrive in part 3 at an unavoidable candid conclusion that: “Judge Albright’s aggressive efforts to attract patent cases to Waco—and his seeming disregard of appellate precedent on transfer of venue—have forced the Federal Circuit’s hand.”
    The statistics also show that it did not take nearly as long to get EDTX to pay proper attention to legal requirements (far less mandamus venue decision reversals).

    1. 4.1

      Pleased to see….

      Of course you are ( )

  8. 3

    But Judge Albright’s aggressive efforts to attract patent cases to Waco—and his seeming disregard of appellate precedent on transfer of venue—have forced the Federal Circuit’s hand.
    You mean the Federal Circuit’s recasting of the findings made by Judge Albright has made him seemingly disregard appellate precedent. It wasn’t like DISH had no connection to WDTX. They had remanufacturing facilities there as well as sales and distribution centers.

    One also has to seriously question the Federal Circuit when they assert that documents that were electronically stored in Colorado would be a factor for transferring venue. Seriously? This is 2021 — not 1921 or even 2001.

    As for convenience of witness, we are living in the Zoom era. Face-to-face meetings (or depositions) are hardly necessary.

    For judges that should be technologically savvy, their findings as to the convenience of parties and witnesses evidence a 20th century mindset about the current reality of litigation.

    The Federal Circuit bends over backwards for accused patent infringers and has been doing so for at least a decade or so. As such, what should be extraordinary becomes ordinary so long as it benefits the accused patent infringers.

    1. 3.1

      How much patent crack do you smoke daily, Blundering F00l?

      You are doing your fellow huffers no favors by reciting scripts that were debunked and tiresome fifteen years ago.

      Albright should be impeached because he is a corrupt knob. Of course he’s from Texas.

    2. 3.2

      It wasn’t like DISH had no connection to WDTX.

      That’s nice. “Any connection” isn’t the legal standard.

      Got anything else? No? Then maybe just put a sock in it.

      1. 3.2.1

        Nice fallacy Malcolm, as you reply to his intro, ignore the additional points he presents and then ask if he has any additional points.

        Does this “style” of yours ever actually work for you?

    3. 3.3

      “One also has to seriously question the Federal Circuit when they assert that documents that were electronically stored in Colorado would be a factor for transferring venue.”

      Does one also have to seriously question Judge Albright when he uses the relative proximity of a data center to the Western District to find the sources-of-proof factor weighs against transfer? (In Re Google)

      1. 3.3.1

        Judge Albright also found that the willing witnesses (convenience) factor weighed against transfer in In Re Hulu.

    4. 3.4

      One… has to seriously question… that documents that were electronically stored in Colorado would be a factor for transferring venue. Seriously? This is 2021 — not 1921 or even 2001… As for convenience of witness, we are living in the Zoom era. Face-to-face meetings (or depositions) are hardly necessary.

      Three points, two of law and one of policy:

      (1) I agree that it is not unreasonable of Judge Albright to think of giving little weight to the physical location of records in an era where they are mostly electronic. If one is being fair, however, it is also not unreasonable for the CAFC to accord weight to this detail because Congress has told them to pay attention to this detail. In other words, I am not sure how fair it is to blame the CAFC. The statute gives them factors to consider, and they are considering them, just like Congress said to do. Probably, Congress should revise the statute to take social & technological developments into account, but it has not done so yet.

      (2) Travel can be really disruptive to the lives of witnesses, but even Zoom calls can be meaningfully disruptive where more than one time zone is involved. I think that even in view of recent tech developments Congress is right to include this point in the list of considerations when evaluating a venue transfer request, and the CAFC is right to accord it weight.

      (3) The law is that the plaintiff has the privilege of choosing the venue, but as a policy matter this seems wrong to me. At the start of the process, the defendant is presumed not liable. The plaintiff is the one presumptively inconveniencing the defendant, so venue considerations really should lean in favor of the defendant’s convenience.

      1. 3.4.1

        “the defendant is presumed not liable.”

        You mean like patents are presumed valid — apparently so, that is, unless you’ve got a panel of judges wearing Alice-colored glasses.

        1. 3.4.1.1

          One pill makes you smaller…

        2. 3.4.1.2

          Patents are presumed valid. Even under Alice, the proponent of invalidity has the burden of articulating the Alice challenge, which is all that is meant by “presumption” in the legal context. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981). No judge has yet raised Alice issues sua sponte.

          1. 3.4.1.2.1

            which is all that is meant by “presumption” in the legal context.

            Absolutely false.

      2. 3.4.2

        Telling them to “pay attention” is not mutually exclusive from the points that Wt presents.

        You should not be in such a hurry to try to obfuscate those points Greg.

      3. 3.4.3

        If one is being fair, however, it is also not unreasonable for the CAFC to accord weight to this detail because Congress has told them to pay attention to this detail.
        Congress told them? Please don’t shoot from the hip. It is a bad look for you.

        This is the text of 28 USC 1404(a):
        For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.
        Congress didn’t say anything about the factors. These factors are all judge-made and many date back a very long time.

        but even Zoom calls can be meaningfully disruptive where more than one time zone is involved.
        Seriously? I would wager that a zoom call is less disruptive than having to go to a courtroom (or a law office for a deposition) — no matter where it is located.

        The statute gives them factors to consider, and they are considering them
        It isn’t up to the CAFC to consider the factors. It is up to the CAFC to review the judge’s decision for abuse of discretion, which is very deferential. As admitted by the Federal Circuit, “[a] district court enjoys broad discretion in making a transfer determination.” However, this is not what the Federal Circuit is doing. Rather, they are substituting their own determinations for the determinations made by the district court. This is a quote from a 9th Circuit case: reversal under abuse of discretion standard is possible only “when the appellate court is convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances”).

        In essence, while the Federal Circuit should be performing a review for abuse of discretion, in reality, the Federal Circuit is performing a de novo review, which is not proper in this particular situation.

        The law is that the plaintiff has the privilege of choosing the venue, but as a policy matter this seems wrong to me. At the start of the process, the defendant is presumed not liable. The plaintiff is the one presumptively inconveniencing the defendant, so venue considerations really should lean in favor of the defendant’s convenience.
        There is no presumption of innocence in a civil case. Again, you are shooting from the hip.

        The plaintiff is the one presumptively inconveniencing the defendant
        No — a well-pled complaint lays out that the defendant has wronged the plaintiff in some manner (i.e., the plaintiff has a claim against the defendant). Otherwise, dismissal under a 12b6 motion is warranted.

        1. 3.4.3.1

          Please don’t shoot from the hip. It is a bad look for you.

          You are quite right. Naturally, I regret any confusion that resulted from my sloppy lack of proper citation in 3.4.1.2. None of this really affects the substantive points that I was making in 3.4.1.2, but accuracy is important and I am sorry for my lack of accuracy. I am glad that Ben later corrected the record in 6.

          Congress didn’t say anything about the factors. These factors are all judge-made…

          Right, let us examine this point carefully. The Court set out these factors—in exactly the same words and order that both the CA5 and the CAFC recite them—in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947). There, in 1947, the Court explained (Id. at 507) that

          The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself.

          Many of the states have met misuse of venue by investing courts with a discretion to change the place of trial on various grounds, such as the convenience of witnesses and the ends of justice. The federal law contains no such express criteria to guide the district court in exercising its power. But the problem is a very old one affecting the administration of the courts as well as the rights of litigants, and both in England and in this country the common law worked out techniques and criteria for dealing with it.

          [emphasis added]

          In 1948, Congress amended Title 28 to codify forum non conveniens, which had previously existed in federal law only as a common law doctrine. Congress specified that §1404(a) is to be invoked “[f]or the convenience of parties and witnesses, in the interest of justice…,” which is almost the identical language that the Court used as a preliminary to the Gulf Oil factors. “Congress is understood to legislate against a background of common-law principles, and when a statute covers an issue previously governed by the common law, we interpret the statute with the presumption that Congress intended to retain the substance of the common law.” Samantar v. Yousuf, 560 U.S. 305, 320 n.13 (2010) (internal citations and quotations omitted). Therefore, the right way to understand “convenience of the parties and witnesses” is as a shorthand for the private Gulf Oil factors, and the right way to understand “interest of justice” is as a shorthand for the public Gulf Oil factors. Therefore, when either the CA5 or the CAFC scrutinize district court venue transfer decisions, they are doing no more than that which Congress has instructed.

          1. 3.4.3.1.1

            Therefore, when either the CA5 or the CAFC scrutinize district court venue transfer decisions, they are doing no more than that which Congress has instructed.
            You still don’t get that Congress didn’t make up any of the factors. Moreover, being judge-made law, the Courts are free to change the factors as they see fit.

            1. 3.4.3.1.1.1

              You will want to spend some time on the concept of “statutory stare decisis.” Read Marvel v Kimble, for example.

              1. 3.4.3.1.1.1.1

                Twice now you have errantly referenced Kimble.

                You
                S
                U
                C
                K

              2. 3.4.3.1.1.1.2

                “statutory stare decisis.”
                You are still confused as to who created the factors. Congress didn’t.

                Moreover, statutory stare decisis only applies when the court wants it to apply. Let me give you a hint as to how this works. I’ll provide you the language and you can guess the decision:
                This Court has “more than once cautioned that courts ‘should not read into the patent laws limitations and conditions which the legislature has not expressed.’ ”
                This one is pretty easy — it is from Bilski, in which the Court proceeded to do EXACTLY what it cautioned not to do. All the court has to do is invoke the correct standard and then proceed to ignore it. It is done ALL THE TIME.

                You are spending a lot of time trying to defend a position that you’ve already admitted that you go wrong.

                1. Look, if you think that—when confronted with an appeal from one of these mandamus orders—the Supreme Court is more likely to run with your Bilski dictum than with my Gulf Oil holding, I cannot presently prove you wrong. I definitely prefer my side of that wager, however.

        2. 3.4.3.2

          It is up to the CAFC to review the judge’s decision for abuse of discretion, which is very deferential… [W]hile the Federal Circuit should be performing a review for abuse of discretion, in reality, the Federal Circuit is performing a de novo review, which is not proper in this particular situation.

          I agree that the CAFC’s review of these venue transfer petitions should be very deferential, which no doubt explains why the CAFC has denied twice as many of these mandamus appeals as they have granted from WD Tex. That rate of denial—even as they invariably note that Judge Albright has gotten this or that point of law wrong—rather conclusively disproves your contention that they are doing de novo review. Rather, what Judge Albright’s ~30% mandamus reversal rate shows is not that the CAFC is indulging in too exacting a review, but rather that Judge Albright is rather flagrantly abusing his discretion.

          [A] zoom call is less disruptive than having to go to a courtroom…

          Certainly. My point was merely that when the case is being litigated in TX, then the Zoom sessions will be scheduled around a central time zone set of business hours, as opposed to the pacific time zone hours that will be used when the trial is litigated in CA. This can make a difference to CA-resident witnesses.

          There is no presumption of innocence in a civil case. Again, you are shooting from the hip.

          “Innocence” is not at issue in a civil trial. Civil trials concern “liability.” A defendant in a civil trial definitely enjoys a presumption of non-liability. Agawam Co. v. Jordan, 7 Wall. 583, 609 (1869).

          1. 3.4.3.2.1

            That rate of denial—even as they invariably note that Judge Albright has gotten this or that point of law wrong—rather conclusively disproves your contention that they are doing de novo review.
            You might have a point if the Federal Circuit wasn’t well-known for ignoring the law. Alice didn’t authorize the wholesale clear-cutting of technologies undertaken by the Federal Circuit. Regardless, the Federal Circuit’s 101 jurisprudence is an absolute disaster. 12b6 motions to dismiss have never been used in the manner that the Federal Circuit now authorizes. 12b6 motions are about the sufficiency of the complaint. This isn’t some obscure Rule only applied by the Federal Circuit. What is required in a 12b6 motion is well-developed law in every Circuit and has also been to the Supreme Court (twice) since the turn of the millennia. If YOU understood how litigation is supposed to work (and as evidenced by many of your comments, you do not), you would realize that it is the Federal Circuit that has gone rogue — not Judge Albright.

            I had the opportunity to talk to a retired Federal Circuit judge not too long ago — he was embarrassed as to the current state of the court.

            Certainly. My point was merely that when the case is being litigated in TX, then the Zoom sessions will be scheduled around a central time zone set of business hours, as opposed to the pacific time zone hours that will be used when the trial is litigated in CA. This can make a difference to CA-resident witnesses.
            Seriously, 2 hours makes a difference? You stretch reasonableness beyond its breaking point even more than than the Federal Circuit — and that is saying a lot. BTW, in the Dish Network case, the motion was to transfer it to Denver — a 1 hour difference. Regardless, like the Federal Circuit, you are giving deference to Albright’s findings — you are substituting your own analysis for his analysis. That’s a de novo review — not a review for abuse of discretion.

            A defendant in a civil trial definitely enjoys a presumption of non-liability. Agawam Co. v. Jordan, 7 Wall. 583, 609 (1869).
            A 150 year old case is the best you can come up with? Regardless, I very much doubt you read the cite — I just did, and one would be hard pressed to see how that cite in any way shape or form supports this supposed legal principle. You really need to stop shooting from the hip. Next time, if you are going to cite something, read it first — don’t rely upon some random description on the internet.

            1. 3.4.3.2.1.1

              I very much doubt you read the cite — I just did, and one would be hard pressed to see how that cite in any way shape or form supports this supposed legal principle.

              From the cited case, at the given pin cite: “Infringement is an affirmative allegation made by the complainant, and the burden of proving it is upon him… .”

              I feel embarrassed that I need to explain to you that the plaintiff bears the burden of persuasion in a civil suit. Why are you even disputing this? What do you hope to accomplish with this line of argument?

              1. 3.4.3.2.1.1.1

                From the cited case, at the given pin cite: “Infringement is an affirmative allegation made by the complainant, and the burden of proving it is upon him… .”
                That is hardly a presumption of non-liability. All one has to do is present a scintilla of evidence as to each element of the claim. Regardless, if this “presumption of non-liability” was such a bedrock principle in civil trials, why isn’t it repeated more often? It isn’t because it is/was an inarticulate (and inaccurate) way of expressing a particular legal principle.

                What do you hope to accomplish with this line of argument?
                I could ask the same question of you? You were the one who stated that this so-called presumption of innocence gave the defendant some special consideration (i.e., “The plaintiff is the one presumptively inconveniencing the defendant, so venue considerations really should lean in favor of the defendant’s convenience”). Under a preponderance of the evidence standard, no one gets special considerations. There is a weighing of the evidence, and the strongest evidence wins … period.

                1. Premise #1: “The word ‘presumption’ properly used refers only to a device for allocating the production burden.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981).

                  Premise #2: “Infringement is an affirmative allegation made by the complainant, and the burden of proving it is upon him… .” Agawam Co. v. Jordan, 7 Wall. 583, 609 (1869).

                  Conclusion: The starting presumption of a patent infringement case is that the defendant is not liable.

                  If you care to explain the difference between the Agawam premise and my conclusion without contradicting the Burdine premise, I will be interested for the explanation.

            2. 3.4.3.2.1.2

              A 150 year old case is the best you can come up with?

              If you prefer something more recent, you can consult the first sentence of Medtronic, Inc. v. Mirowski Family Ventures, 134 S. Ct. 843, 846 (2014). Honestly, I would not have thought that the principle that the plaintiff bears the burden of persuasion would be a point so controverted as to require extensive citation to establish.

              Seriously, 2 hours makes a difference?

              Yes, seriously. Surely you have experienced the frustration of dealing with two hour time differences yourself, no? 10 am may seem a very reasonable and businesslike time to hold a meeting, but if 10 am CST = 8 am PST, this can mean that you are expecting the witness to be in a hearing at precisely the time that she is supposed to be dropping her kid off at daycare. If you schedule the hearing at 2 pm CST, that can mean that you are asking the witness to be in a hearing at precisely the hour that he is supposed to pick up his kindergartner after school. I know that this might not seem like much to a lawyer, who will likely have the sort of social network that is redundant and flexible enough to weather these sorts of disruptions, but witnesses are not necessarily so privileged. It is quite right and proper for courts to consider such points.

              1. 3.4.3.2.1.2.1

                If you prefer something more recent, you can consult the first sentence of Medtronic, Inc. v. Mirowski Family Ventures, 134 S. Ct. 843, 846 (2014).
                That sentence refers to burden of proof. There is a difference between a presumption and both the burden of proof and the standard of proof.

                Honestly, I would not have thought that the principle that the plaintiff bears the burden of persuasion would be a point so controverted as to require extensive citation to establish.
                That is one of the best strawman arguments I have seen made recently. The issue was about the supposed presumption of non-liability in civil cases that gives rise to special considerations for the defendant — that is some great goalpost moving.

                Yes, seriously. Surely you have experienced the frustration of dealing with two hour time differences yourself, no?
                I have to deal with 12 and 14 hour differences (inventors in India). It is an inconvenience but only a minor one. The person I converse most with in my firm is a 3 hour difference — very minor inconvenience.

                I know that this might not seem like much to a lawyer, who will likely have the sort of social network that is redundant and flexible enough to weather these sorts of disruptions, but witnesses are not necessarily so privileged. It is quite right and proper for courts to consider such points.
                Never been involved in a litigation, have you? Depositions aren’t just scheduled willy-nilly with no regard to the schedule of the person being deposed.

                The inconvenience is the deposition itself. Again, the availability in many courts to use Zoom (or some comparable technology) has made this inconvenience less.

                Yet again, you are performing a de novo review on the issues. That isn’t what a reviewing court is supposed to do. They review the decision for clear abuse of discretion. This isn’t some … I’m of a different view as to you regarding how I would interpret the fact so I’m going to reverse.

                28 USC 1404 is permissive (i.e., “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division”). Notice the use of “may” there? This means that even if the court finds that a different venue is more convenient they aren’t required to transfer the case.

                An extraordinary relief should be granted very, very rarely. Otherwise, every patent defendant will file motions to get their case transferred to their home (and presumably friendlier) district. Once this happens, the Federal Circuit is going to be flooded with appeals from denied motions. Moreover, because of the (questionable) law being created by the Federal Circuit in which they are essentially performing a de novo review — nitpicking every factor — more and more will be granted, and not just from WDTX and EDTX.

                What we’ll see is what we’ve seen with 12b6 motions (which should be very rarely granted themselves). Even if not successful, they are a dilatory tactic employed by defendants to delay the proceedings and impose more costs on plaintiffs.

                The Federal Circuit’s actions in which extraordinary relief is going to be ordinarily granted are going to ultimately make patent litigation (i) more expensive and (ii) more protracted. This is great for well-heeled defendants, which is who the current US patent system is geared to protect.

            3. 3.4.3.2.1.3

              [I]t is the Federal Circuit that has gone rogue — not Judge Albright.

              The two assertions are not mutually exclusive. It is fully possible for Judge Albright to be wrong about forum non conveniens even as the CAFC are “wrong”* about the use of 12(b)(6) to dispose of patent cases on §101 grounds.

              * In reality, the CAFC are simply toeing the SCotUS’s line on both forum non conveniens and 12(b)(6) for §101 invalidity contentions. In a rather distressing sense, then, the CAFC is actually right about both these points. I contend that the SCotUS is getting §101 wrong in some sense that goes deeper than law. In the strictly legal sense, of course, the SCotUS cannot get the law wrong, because “the law” is—by definition—whatever the SCotUS says that it is.

              1. 3.4.3.2.1.3.1

                Yet another absolutely wrong statement:

                In the strictly legal sense, of course, the SCotUS cannot get the law wrong,

        3. 3.4.3.3

          “[I]n a civil case…, the law on the question of burden of proof amounts to the equivalent of a presumption that the defendant is not liable until the plaintiff proves by a preponderance of the evidence that he is liable, etc.” Lawler v. Life Ins. Co. of Georgia, 90 Ga. App. 481, 487 (1954).

  9. 2

    This is a very strange set of posts.

    1. 2.1

      They are only strange if you forget that Dennis and Jason are from one of the worst law schools in the country and have a habitual attraction for reactionary idiocy. Also they are surrounded by MAGA detritus and all that comes with it.

      1. 2.1.1

        MAGA…?

        Really?

        Are you still afflicted with that Orange Man Bad Derangement Syndrome?

        You have not yet glommed on to how much worse Biden is?

        1. 2.1.1.1

          worse at what? protofascism? using the government for his own ends? producing failsons?

          1. 2.1.1.1.1

            Qualification only serves to potentially mitigate the damage anon does to his excrement-stained reputation. He thinks 46 is worse than 45. That’s enough.

            1. 2.1.1.1.1.1

              “He thinks 46 is worse than 45”

              Hmmm, let’s see:
              B:
              1. issued a bunch of exec orders, several of which are illegal and already undone (all of them trying to make nation leftist for some reason when he isn’t even leftist himself)
              2. Gas prices up, inflation up (econ growth up as well, but the everyman won’t care for 10 years or more about that while former hit him today)
              3. Ever more draconian vaxx policies implemented monthly
              4. bungles losing america’s longest war, thousands die needlessly, entirely predictably
              5. Legislative agenda already watered down by half, will be further watered down to meet corporate agenda by the time it passes (maybe a 1/4 of his agenda done, if that, and nothing important being done).
              6. Obviously has dementia and his even being in office is literal elder abuse

              T:
              1. MAGA BTCHES
              2. MAGA BTCHES
              3. MAGA BTCHES
              4. MAGA BTCHES
              5. MAGA BTCHES
              6. MAGA BTCHES

            2. 2.1.1.1.1.2

              Coming from you Ben, your feelings of:

              does to his excrement-stained reputation

              is an [unintentional] compliment.

            3. 2.1.1.1.1.3

              [A]non… thinks 46 is worse than 45. That’s enough.

              Of course anon thinks that. Consider the source, as they say.

              1. 2.1.1.1.1.3.1

                For someone who “proudly” says that he ign ores my posts, you should restrain yourself from repeating false statements of others.

                Ben is in plain error for his supposition that I like 45.

                He is also in plain error to think that 46 has been better than 45.

                On any objective measure, 46 has been an utter disaster.

                Incompetence across the board mixed with a far higher degree of authoritarianism than 45.

      2. 2.1.2

        “Also they are surrounded by MAGA detritus and all that comes with it.”

        Lol who told you that? Their whole school is rumored to be riddled with leftist detritus. If I’d have known that, I might well have gone down to see em.

        “You have not yet glommed on to how much worse Biden is?”

        Did you bros see the betting sites allowing bets on how long it will be before Biden is calling himself “Brandon”?

        link to youtube.com

  10. 1

    [T]hat grant rate excludes one petition, In re DISH Network, which the Federal Circuit nominally denied but effectively granted by demanding that Judge Albright “reconsider” his transfer denial in light of the “appropriate legal standard and precedent,”…

    Ha, if only you had waited until later today to launch this post. Just this morning the CAFC granted mandamus on this very case when it came back to them after Judge Albright denied transfer on remand.

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