Mandamus Monday

Four new mandamus orders from the Federal Circuit stemming from Judge Alan Albright’s court in Waco Texas.

  • In re Apple, 21-181 (Fed. Cir. Nov 15, 2021).  Abuse of discretion to deny transfer motion. No significant ties between the action and the W.D.Tex.  Apple does have thousands of employees in the district, but the key employees related to the infringement are not in the district.
  • In re Altassian Corp., 21-177 (Fed. Cir. Nov 15, 2021). Abuse of discretion to deny transfer motion even though defendant is from Australia and has a major Austin Office.  None of its employees who work in Austin, Texas possess unique knowledge about the accused products.
  • In re Google, 21-178 (Fed. Cir. Nov 15, 2021). Abuse of discretion to deny transfer motion even though defendant maintains a major office in Austin.  None of its Austin employees were involved with developing the accused functionalities.
  • In re Merkai Integrated Circuit (21-180).  Mandamus was moot, Judge Hughes wrote separately to chastise Judge Albright’s orders.  This case is interesting — can a defendant request transfer, but reserve the right to argue that the new court lacks personal jurisdiction?

129 thoughts on “Mandamus Monday

  1. 9

    Night Wiper: As Dershowitz said

    ROTFLMAO

  2. 8

    Down below we are discussing the ways in which Congress changed the common law of forum non conveniens when it codified venue transfer in 28 U.S.C. §1404(a). I think that overall this change has been for the better.

    On the other hand, many state legislatures have changed the common law of self defense in the last two decades with so-called “stand your ground” laws, nullifying the common law obligation to retreat to safety before one may invoke self defense against a homicide charge. Recent events are repeatedly showing this trend to be socially deleterious. We would do well to repeal these “stand your ground” laws and go back to the common law.

    1. 8.1

      Greg is whining on his soapbox again…

      Recent events are repeatedly showing this trend to be socially deleterious.

      Actually, the facts of the matter are the opposite, and it is in Liberal Left enclaves like Chicago that the very much more socially deleterious conditions exist.

      Check your Activist Privilege there Greg.

      1. 8.1.1

        I wonder if Greg is offended by the verdict that has come out in the Rittenhouse case.

        1. 8.1.1.1

          First some convicted felon kicked Rittenhouse in the head when he was on the ground. A second convicted felon slammed Rittenhouse in the head with a skateboard (attempted murder) and then tried to take the AR-15 and as a result got shot in the chest. The third convicted felon then pulled out a handgun and pointed it at Rittenhouse, who righteously blew his arm off. It’s all on videotape. Never should have been charged.

          1. 8.1.1.1.1

            Never should have been charged.

            It is difficult to understand how the prosecution ever hoped to win on any the homicide charges.

    2. 8.2

      The trouble with being a member of the reality-based community is that complex problems with complex solutions don’t have easy, emotionally satisfying answers. That’s why the rub es prefer the comfort of daddy’s (whoever daddy is, but especially Orange Julius) reassurances that more guns, fewer Mex i cans, and raw power over elites and their book learnin’ is what we really need.

      Greg you are clearly in the RBC, as you demonstrate with your understanding of inflation. This piece is getting a lot of attention- about the legal tensions at play with guns and the break with the common law tradition.

      link to nymag.com

      The patent people I know who inhabit the RBC usually can’t help themselves from understanding what I’ve been saying about inventions that produce a useful result in the form of information. They may not agree policy wise, but they understand the proposition.

      As with guns on the street and Stand Your Ground laws- there are forces in tension with no easy answer.

      1. 8.2.1

        Marty’s “RBC” meets on his very own Peak of S.

        1. 8.2.1.1

          These arguments are ridiculous.

          I was thinking why am I not afraid of people like Rittenhouse? The reason is that I would never attack another person for political reasons nor allow them to provoke me to attack them.

          The people that want to put Rittenhouse away are the ones that think they can attack people in the streets and so they are afraid of people like Rittenhouse as their inclination is to beat someone like Rittenhouse. They want to control the streets with mobs of people and feel it is OK to attack people not in agreement with them.

          1. 8.2.1.1.1

            I have many friends who were dismayed by the Rittenhouse tragedy. I cannot imagine describing any of them as “want[ing] to control the streets with mobs of people” or “feel[ing] it is OK to attack people not in agreement with them.” Indeed, given that the pro-Rittenhouse partisans celebrate him precisely for his vigilantism, it is passing strange to suppose that the anti-Rittenhouse “want… mobs… .”

            The reality seems quite the opposite. We have all seen DJT Jr. and Alex Jones wrangling up mobs and inciting them to violence. Has anyone seen Chris Hayes or Ezra Klein doing so? I certainly have not. From where I am standing, 8.2.1.1 looks like more projection.

            1. 8.2.1.1.1.1

              Wow Greg. So much there to untangle and refute.

              Just ridiculous nonsense. The real question is why are they “dismayed”?
              I do not celebrate Rittenhouse and do not support vigilantism. But I also don’t support attacking people with guns on the streets. And, you know, you are a lawyer. Think. What the far left is trying to do is say that whatever we think is OK. No rules. Right and wrong are defined by our CRT. The far left encouraged the riots and burning and said it didn’t matter because of insurance. That has been refuted by a NY Times reporter that most of the damage done was to stores without insurance and there was a lot of harm to many people.

              Anyway….I’ve found that people like you are like a cult. You believe with no frame of reference. Try to be an attorney. Put the laws in your head. The laws and this nation need to incorporate all people into the fold and treat everyone equally. The far left’s goal is to tear everything down and build it anew based on historic oppression and race/sexual identity.

              Liberal D policies have made amazing progress. We need practical solutions and these nuts on the far left are just making things much, much worse. The reality is that the people that attack Rittenhouse probably felt empowered by statements made by AOC and her ilk. The real denizens of violence are the far left.

              As Dershowitz said, what the far left want is for no cross-examinations for people they deem as part of their cult.

              1. 8.2.1.1.1.1.1

                Plus, what would the opposite be? If you have a gun at a protest/riot and you appear not to be one of the “woke”, then you may be beaten at will.

                The real problem here is the harm done by the riot was real and affected many people. Expecting people just to sit by as their businesses are burned down is outrageous.

                I would support an ordinance where the police control the rioters and ban for short periods of time people with guns in the riot zone.

                But I’ve learned that people like you are cult-like and convincing you of anything is impossible. You no longer worship at the alter of the Enlightenment where laws and rationality rule.

                What gets me is all the progress we’ve made is being torn down by a bunch of s l i me ba ll politicians and academics.

                1. Plus if you were an honest person, you’d admit that the left media has lied so much about this it is ridiculous.

                  And….the real question is what would you change in the law that would make it no OK for Rittenhouse did?


                  (iii) Self-defense may not be asserted when the defendant is not part of a historically oppressed group or when the self-dense is being asserted against people gathered to protest the treatment of historically oppressed groups.

                2. Plus just commonsense. The person that was chasing him was violent, a rapist, a child molester, had made death threats that night, and so forth.

                  So was Rittenhouse right or wrong in his assessment that he needed to defend himself?

                  The far left say the “greater context” meaning if you are at a riot with a gun and you don’t support the rioters, then you better be prepared to get your head kicked in and die.

                  Just ridiculous. Rule of Law. Enlightenment. The core concepts of our civilization that made us a country where 100’s of millions of people would like to come and live.

                  Is it messed up big time? Yes. Is there a better system? Not that we know of.

              2. 8.2.1.1.1.1.2

                Greg’s being Greg.

                Talk about your Peak S, and I bet that he does not recognize that he is trouncing any bit of credibility with his Liberal Left nonsense.

            2. 8.2.1.1.1.2

              “Has anyone seen Chris Hayes or Ezra Klein doing so?”

              I don’t think these are equivalent figures, though I’m not sure who the right choices are.

              Anyways, I just came here to say that in my view, Erza Klein regularly acts to incite violence against… Erza Klein. He’s trying to come off as insufferable, right?

            3. 8.2.1.1.1.3

              Greg, “Chris Hayes or Ezra Klein”. Your nonsense never ends.

              How about Cuomo on CNN saying “who says that protests have to peaceful?”. There are about 100 other examples that you can look up yourself but it sounds like you are into an echo chamber.

              I would challenge you as a an attorney to do one thing. Actually write down the facts of one of these news stories and then fact check the sources you are relying on. How many lies or omissions have they told? I did this with the Cooper woman in the Central Park dog case. I stopped reading the NY Times (pretty much and will not give them any more money) after they omitted the entire first part of the story where the black male Cooper threatened the white woman Cooper by saying that she was “not going to like what he was about to do”, and then feeding her dog. A reasonable person would think this meant he was going to poison her dog. In fact it is so bad that there were two videos. The black male Cooper had a first video of him confronting the white woman Cooper and then a second video of her reacting to his provoking her. The news only showed the first video and the NY Times only reported on the second video. Not news. Trump was right that this is fake news. And no the other side isn’t much better.

              1. 8.2.1.1.1.3.1

                but it sounds like you are into an echo chamber.

                Exactly. Greg does this to himself because he views any ‘rebuke’ with even the slightest hint of John Maynard Keynes to be too debilitating for Greg to handle.

                1. Yup,

                  As I noted to 6 on a another thread (that one caught in a Count Filter), there is not ‘obligation’ to respond to any post at all (6’s point) — but the choice NOT to respond can still SAY a lot.

                  And the patterns of when responses go lacking says F A R more than the ones going quiet may realize.

            4. 8.2.1.1.1.4

              wrangling up mobs and inciting them to violence

              let me introduce you to SEVERAL key “D” Congress critters (yes, including Miss Maxine Watters)…

              Oops, that does not fit Greg’s narrative….

      2. 8.2.2

        I believe that nearly everyone around here understands your hermeneutic for eligibility, Martin. I mostly (~75%) agree with the wisdom of the proposal. Others vehemently disagree. I think that we all understand it, however. Obviously, there is a way to go before it becomes actual law.

        1. 8.2.2.1

          Sadly, no.

          The origin of the RBC:

          The aide said that guys like me were ‘in what we call the reality-based community,’ which he defined as people who ‘believe that solutions emerge from your judicious study of discernible reality.’ […] ‘That’s not the way the world really works anymore,’ he continued. ‘We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors…and you, all of you, will be left to just study what we do

          One of the weaknesses of living in the RBC is the tendency to assume that perceptions of visible, repeating patterns and forces are broadly shared by any rational person.

          They. Are. Not.

          People do not understand lots and lots of things. They lack the mental framework to process ambiguity, emergence, and probabilistic behaviors, and as a result, they depend on magical thinking and group identity to fill in the gaps.

          1. 8.2.2.1.1

            People do not understand lots and lots of things. They lack the mental framework to process ambiguity, emergence, and probabilistic behaviors, and as a result, they depend on magical thinking and group identity to fill in the gaps.

            I definitely agree with this. I am not convinced, however, that the Snyder eligibility rule is actually part of the class “things that many people do not understand.” Sure, some of the dimmer participants around here probably do not actually understand your proposed rule, but I doubt that the group of not-understanders numbers more than you could count on one hand.

            1. 8.2.2.1.1.1

              Greg,

              He also tends to deflect to a view of “you don’t understand” when confronted with a critical view that shows that Marty does not understand the terrain upon which he would do battle.

              This is very much why he fits the Peak S description, ever TOO confident in his own views… See link to ipwatchdog.com

          2. 8.2.2.1.2

            depend on magical thinking and group identity to fill in the gaps.

            I literally laughed out loud, given that the Liberal Left’s philosophy is embedded with identity politics (think: Neo-Liberalism).

      3. 8.2.3

        Not a ridiculously bad article.

        They did get this part wrong tho:

        “that a different protester fired a gun into the sky, and immediately following this shot”

        Rosenbaum’s bro didn’t fire just one (warning) shot. He fired several.

        “Rittenhouse ceased fleeing and turned around; that Rosenbaum then moved toward Rittenhouse, who proceeded to fire four times.”

        That’s not really true, as it paints a slightly false picture. Rittenhouse stopped fleeing, eventually, to briefly see what was happening behind him (after rosenbaums bro fired multiple “warning” shots). Rosenbaum, already still chasing Ritten, caught up to Rittenhouse. Then Rosen literally lunged and went for Rittenhouse’s weapon like a tard, and Rittenhouse fired 4 times and put the literal ex-con criminally insane man on the ground for continuing to threaten him over and over with his bro firing “warning” shots.

        “Those shots attracted the attention of nearby demonstrators”

        That’s not necessarily true and lacks evidence. They of the crowd to attack Rittenhouse were already down the street it appears, and what “got their attention” was bystanders yelling that Rittenhouse just shot a dude over and over (with some stating to get rittenhouse iirc) in a fashion somewhat like a mob. The actual shots fired at rosenbaum, along with the initial warning shots, sent the crowd that was around Ritten and Rosen literally fleeing (clearly seen in vid with like 30 people dispersing rapidly). As one would expect.

        “the gunman”

        It always makes lefties feel special to say this.

        “through the heart, instantly killing him”

        Obviously not true, he stumbled a few paces and then gave the infamous “I’m literally dying” meme pose and then died while padooping himself, as a true leftist “fighting the fash” he so loved. We must at least let them die with such dignity befits.

        “a culture of mass firearm ownership and vigilantism — is antithetical to law and order as it is conventionally understood”

        Not at all. We’ve had even more rough and tumble happening in the most law n order of our country for centuries thx.

        “It is a culture premised on the illegitimacy of the state’s monopoly on violence and the incapacity of formal institutions to uphold social order or public safety. ”

        So then kinda like when the police did nothing in Kenosha?

        “It sees America as a society forever teetering on the brink of Hobbesian breakdown, and firearms as the sole guarantor of individual security. ”

        Let me guess, this, under the leftist hypothesis, is because of slavery amirite?

        “And the more influential this culture becomes, the more its paranoid delusions come to resemble our collective reality.”

        Insert pictures of mostly peaceful protest fires here.

        “If Rittenhouse had a right to shoot Huber and Grosskreutz in self-defense, the latter had a similarly legitimate basis for shooting Rittenhouse dead.”

        Not actually formally true. As there was no reasonable (or even unreasonable) belief that they needed to act “to spare themselves/yourself or others from imminent bodily harm or death” as Rittenhouse was not causing anyone to believe such merely running down the road to the cops. Neither do the dead Huber or Gaige state that they had such a belief.

        See below meme clearly proving Huber did not get killed “instantly”.

        link to ifunny.co

        The best part of the article tho is the author, as he appears to be a fellow jewish IDing man like myself. That’s good. Truly pushing the evil white cis hetero christian capitalist legal framework towards the moral to which he believes they should be held.

        1. 8.2.3.1

          6,

          That article was utter nonsense, as the author had their opinion regardless of any inconvenient facts.

          So this is the Kool-Aid the Left is profusion…

          1. 8.2.3.1.1

            Left is profusion … –> Left drinks in profusion

  3. 7

    The below commentary is too full of irrelevant and non-substantive exchanges for most readers to even bother reading. But over on Gene’s blog is a relevant, interesting and entertaining report on J. Albright’s responses to all his Fed. Cir. mandamus reversals on inconvenient venue. It notes, inter alia, that in one such order he called the Federal Circuit “out of touch” with modern patent litigation. It says that in his most recent he accused them of wholly disregarding binding precedent, and ignoring many of their dictates. For example, regarding the supposed 100-mile rule, he wrote that the Federal Circuit has rendered it “nugatory,” “nullified” it, and “neutered” it, in addition to “altogether disregard[ing]” it, but cites EDTX decisions for authority. He argues that In re Juniper Networks, Inc., “is out of step with decades of jurisprudence springing from courts in the Fifth Circuit and elsewhere,” but is allegedly citing as authority only a 2007 EDTX and a 1992 SDTX case. Later in the opinion, he reportedly also does exactly what most of the mandamus orders have said he should not do. He allegedly doubles down on his proposed time-to-trial in both his pre-trial orders and the very few cases he has fully tried to date but selectively omits the much longer actual times to trial in other cases. He also allegedly refuses to consider who the real patent owner and suit-controller is (here Acacia, certainly not a Texas company) but goes to great pains to look at the local shell company designated plaintiffs. Etc.
    [If this is all true, I do not see how this strange open battle between a district court and its appellate court can continue in this way?]

    1. 7.1

      I do not see how this strange open battle between a district court and its appellate court can continue in this way…

      Don’t you? I can easily see this arrangement continuing ad sæcula sæculorum if neither side wants to back down. The CAFC cannot stop plaintiffs from filing in the WD Tex. Neither those plaintiffs nor the WD Tex bench can stop defendants from seeking transfer under §1404(a), nor from petitioning for mandamus when their transfer motions are denied. Therefore, this same process can just keep playing out forever. Nothing can stop it, except that one side loses interest and decides to let the other have its way.

      1. 7.1.1

        Greg, there is also the previously- reported letter from two leading senators to Justice Roberts asking for the Judicial Conference of the United States, the federal court system’s policymaking body, to study the “absence of adequate rules” about assigning patent cases within a district and the “actual and potential abuses that the present situation has enabled,” and to consider and implement reforms.

      2. 7.1.2

        NO WAY. If J. Albright continues to do this then one (or several) of the following will happen: (1) The Chief Judge of WDTX will make a rule requiring random judge assignment regardless of which division a complaint is filed; (2) Congress will pass legislation (see the letter from the Senate judiciary committee to the Chief Justice) putting a stop to this madness. There is no scenario where this continues on for more than another year, and it certainly won’t go on ad infinitum. IMHO.

        1. 7.1.2.1

          Fair enough. I suppose that one can imagine Chief Judge Garcia intervening. I really would not be surprised if he does not, but my opinion on this point is worth no more than you have paid for it.

          I cannot realistically imagine Congress stepping in here. The amount of effort necessary for two senators to write some letters is much less than the effort necessary to move legislation. That ship will not launch.

    2. 7.2

      below commentary is too full of irrelevant and non-substantive exchanges for most readers to even bother reading

      Paul prefers the anti-patent, pro-Efficient Infringer cheerleading of Stroud…

      shockers.

    3. 7.3

      [O]ver on Gene’s blog is a relevant, interesting and entertaining report on J. Albright’s responses to all his Fed. Cir. mandamus reversals

      The change of tone over there really is striking. I remember a couple years ago, I would get censored for making points that Stroud now makes in his weekly column.

      1. 7.3.1

        That’s simply false of you Greg.

        While certainly, the editorial controls there are more even handed and clear, you have to try pretty hard (like repeat known false statements) to get censored.

        Hmm, maybe if you posted like your post HERE,….

  4. 6

    Laura Chastain was second in command at the BOPR. So why after James A. Vick decided to protect the YMCA Army, were all my cover letters from the BOPR void of Laura Chastain. The D A here and the A D A were given copies of all the letters from the BOPR showing Chastain was no longer there that were obviously from VICK.
    I went to see a lawyer, like so many times before. I showed him the letter from LIAR ATTY. JAMES FOSTER SCHAEFFER where he was saying my complaints were not true. The lawyer from Jackson, TN said to me…. Laura Chasatin??? She has always been there! Then his famous eyeroll started and continued sa he took my money.
    I have just found out after paying him for a consult, and o him the letters and the letter from the LIAR ATTY. JAMES FOSTER SCHAEFFER of MEMPHIS,TN. what I showed him and what he said to me in response after paying him, may in fact be a crime. He lied to me after seeing the evidence that the D A and the A D A still have, as well as the TBI who I gave plenty too.
    So anon,You are surely are more than likely representing the NH criminal.
    So if I were you i’d spend more time jawing about your client than claiming i am incoherent when the D A here and the A D A will prove me correct about the YMCA criminals.
    Now i’m sure LIAR ATTY. JAMES FOSTER SCHAEFFER and BERKENSTOCK must have been given a piece of the profits to my Patent(s).Only problem here is I am not listed correctly as the person who You robbed. I was invented to be the person that has been robbed in an identity theft case. So when my first patent was made invalid, and then my second one was also made invalid, the invalidation was as valid as my name. And because One Memphis Place was One Empty Place, i am sure ATTY. LIAR JAMES FOSTER SCHAEFFER was on the very same floor as ARMY MAN and THIEF JOHN DOLL of the USPTO. The man in charge of stealing Patents using any way he can to invalidate. We all know the USPTO makes up people claiming they are real people. we also know that David Kent lived in Canada and his Design Patent DOLL used to invalidate my Patent, was not anything like the one DOLL changed it to. Then you quickly the USPTO brought David Kent down as a US resident? How’d you do that? Did you give him dual citizenship for that reason. All of this will be proven. and claiming i have no statute, is in fact a big lie. So anon try to get some clients, and stop attacking me because I will prove you are wasting your time claiming i make no sense.

    1. 6.1

      Problem is when I make my post long, it seems to morph. I am not the person that you as well as family robbed. So everything you did including changing who I really am is identity theft. as well as claiming you are the inventor of my IP, is also. ON IT’s FACE this all is a result of my real birth certificate being the evidence that will challenge and prove why it is being denied. And the fact that Silva and Salinas feel I should just cower and take crumbs is as about as ridiculous as them hanging up. I was told to call them in ESSEX COUNTY MA where Raymona, John, and Barney were. I am sure there will be HONEST ATTY’s that will take my case. I am sure Barney being a flocking feather in the dysfunctional group was absolutely involved. So anon quit sitting on the Tennis Net you are beginning to bring it down to the ground.

  5. 5

    It would be amusing if a judge in a sh—thole part of his sh—thole state who pimps his court out to patent trolls ends up creating new precedent. Somehow I don’t see this as likely even with the g 00ns on the current Supreme Court. Reminder: nobody really likes you patent huffer types.

    Also, regarding the convo below, it never fails to amuse how you glibertarians who whine about the “rule of law” are so transparently full of total and complete cr—-p. All of this “dialog” about patent “law” and “separation of powers” is pretty silly when the fash takes over. I guess it must all seem abstract in some ways if you are a rich white entitled dominionist superpr—-k.

    1. 5.1

      Wow – your feelings are running all over the place, aren’t they Malcolm?

      Maybe if you tied those anti-patent, anti-innovation feelings into some cogent rationale, you would be able to make a point (other than you are capable of a rant, that is).

    2. 5.2

      “when the fash takes over”

      Soon Broder, sooooon! lol

      But aren’t you going to comment on the recent polls for the dems bro?

      “dominionist”

      Lol, do we have to wait until after the fash, or can we dominion the US for Yahweh before the fash bro?

      1. 5.2.1

        Kwouch’s Kwazy Kids (TM), doin’ what they do best.

        1. 5.2.1.1

          Yes MM, we all know you’re super afeared of “the fash” and “the dominion” (and presumably their Vorta) and all, but speak a good word to the recent polls and how you believe them to indicate that the repubs are “collapsing”. Don’t sit and keep us waiting bro.

          1. 5.2.1.1.1

            Malcolm is achieving Sarah status.

            He isn’t even pretending to provide cogent points.

        2. 5.2.1.3

          MM bro if you’re so thirsty you can’t tell us about the collapse maybe you can tell us how you like that?

          link to youtube.com

    3. 5.3

      That’s the good stuff right there.

      They can’t tell that they are fash to the boneless core, because they are swimming in it, or something.

      1. 5.3.1

        … says the guy so underwater that he thinks that apoplectic rants my Malcolm are “the good stuff

        Your icon fits you – and not in a good way.

        1. 5.3.1.1

          My hair sweater fits me perfectly.

          I’m too pretty for any camera, but that’s off topic.

          What’s on topic is that MM is a bru tal insult comic, whose work stands out here because the political commentary amongst the regulars is low-grade dog food. A fighting liberal is refreshing.

          anon may simulate someone knowledgeable about patents to the hoi poll oi, but no hope on politics.

          Hey 6, yes, inflation is debt deflation, which ain’t a just a technicality if your $200K loan only costs you $100K in nominal purchasing power.

          Inflation scares the rub es way more than deflation, but they should be more scared of deflation. Re-inflation, after 40 years, should be seen as a pretty good thing, but I don’t think even the amount injected will be enough, because demographics and productivity growth are strong deflationary pressures.

          We need a soft delveraging of the national and private debts. A decade of 5% inflation could be just the thing.

          Who takes the haircut is the stuff of politics. It better be the rich people this time.

          1. 5.3.1.1.1

            Inflation scares the rub es way more than deflation, but they should be more scared of deflation.

            Yes, people should be more scared of deflation. Much of the reason that the 2007 recession was so bad is that the Fed has been running inflation too low for too long. Objectively speaking, core inflation right now is no higher than it was during Reagan’s “morning in America.” This is where inflation should be running in a healthy economy.

            For all that, though, you and I hold a distinctly minority position on this issue. For whatever reason, most people really dislike inflation, even if they do better under 6% annual inflation than under the 1.5% of recent history. Good luck trying to sell them on the benefits of the current inflation numbers, even though you are correct. Inflation is one of those issues—like free trade—where intuition and reality part company so sharply that it is fairly inevitable that most people will be confused about the issue.

            1. 5.3.1.1.1.1

              “This is where inflation should be running in a healthy economy.”

              Greg likes to be robbed. Also Greg <3's regressive stealth taxes. Leave it to Greg.

              "Objectively speaking, core inflation right now is no higher than it was during Reagan’s “morning in America.”"

              Except that, you know, college and houses weren't already inflated through the roof thanks to boomers as of that date. And, you know, jerbs that paid half decent were still half available to the everyman of low skill so it wasn't as big of an issue.

              " even if they do better under 6% annual inflation than under the 1.5% of recent history."

              Who, in particular, "does better" under this heavy handed regressive tax on literally everything that stops even the wealthy from building their wealth substantially? Everyone in huge debt? That's your hypothesis?

              1. 5.3.1.1.1.1.1

                Not sure of the veracity, or if it was just a meme, but saw this tweet from Elon Musk:

                Inflation is the most regressive tax of all, yet is advocated by those who claim to be progressive

              2. 5.3.1.1.1.1.2

                Who, in particular, “does better” under this heavy handed regressive tax on literally everything that stops even the wealthy from building their wealth substantially?

                Inflation is not an all or nothing proposition. 5% inflation is better than 0.5% inflation, but worse than 15% inflation. Everyone does better under a nice, steady 5% inflation, because inflation helps prevent the economy from tipping into recession and the corresponding high unemployment that accompanies recession.

                Takes a whole lot of inflation to get down to that, if my paycheck is half what it was, in purchasing power…

                I doubt that you can find more than a dozen people in all of the U.S. who have seen a 50% drop in purchasing power from inflation. Most people have seen no drop in purchasing power at all. The flip side of $4.80/gallon gas is $20/hr starting wages as McD’s. In other words, much of the headline inflation we are seeing right now is higher wages, because employers are having to pay to get and retain workers.

                1. “Inflation is not an all or nothing proposition. 5% inflation is better than 0.5% inflation, but worse than 15% inflation. Everyone does better under a nice, steady 5% inflation, because inflation helps prevent the economy from tipping into recession and the corresponding high unemployment that accompanies recession.”

                  This is possibly the most re ta rded sht I’ve ever seen come out of your mouth. Inflation stops the econ from tipping into recession therefore gud (uhg also caveman get club and bash heavy rok). Even if that were proven, which it isn’t, obviously, as even in such a circumstance it isn’t the inflation helping stave off recession it’s the giganto amounts of dollars being pumped into the money supply, it would still be ta rded as there are other ways to “prevent recession” that don’t involve giganto stealth regressive taxes.

                  And why isn’t it that there are legions of high-tier economists that agree with you and why don’t they staff the federal reserve and set the inflation target to 5% (rather than 2.3%ish)?

                  “I doubt that you can find more than a dozen people in all of the U.S. who have seen a 50% drop in purchasing power from inflation. ”

                  Um literally everyone has seen a 50% drop in purchasing power from inflation FOR THEIR DOLLAR. That includes you re re. See chart below and a gazillion like it easily findable.

                  “Most people have seen no drop in purchasing power at all. ”

                  Absolutely insanely delu sional.

                  “The flip side of $4.80/gallon gas is $20/hr starting wages as McD’s.”

                  Oh yes, I’m sure that when gas is high McD’s magically pays their workers much higher. The absolute del usion. Why I remember back when I made min wage or just above how happy we were to get giganto raises every year or even 5 years! Also the people I know now that make low wages also similarly are in such a happy place! Gigantic raises every year of like 5%!

                  ““Inflation is the most regressive tax of all, yet is advocated by those who claim to be progressive””

                  Musk and every economist of ever worth a dam agree.

                  link to 1.bp.blogspot.com

                2. “In other words, much of the headline inflation we are seeing right now is higher wages, because employers are having to pay to get and retain workers.”

                  I can’t believe you’re literally saying this sht. You do know the word is out that millions quit to get better wages, and there is no indications (as yet) that they will get them.

                3. This is possibly the most re ta rded sht I’ve ever seen come out of your mouth.

                  Well, I have never believed in doing things by half-measures. Thank you for another response up to the standards of intellectual rigor and engagement that I have come to expect from you.

                4. 5% inflation is better than 0.5% inflation, but worse than 15% inflation.

                  My apologies. The above is a daft typo. I had meant to write that 5% is better than both 0.5% and better than 15%. I ended up saying nearly the opposite.

                  No wonder 6 thinks me brain addled. Quite right, too. Mea culpa.

                5. No wonder 6 thinks me brain addled. Quite right, too. Mea culpa.

                  It is W A Y more than merely that, Greg.

          2. 5.3.1.1.2

            Your…

            ‘hair sweater’….?

            Never mind, I really do not want to know.

          3. 5.3.1.1.3

            What’s on topic is that MM is a bru tal insult comic, whose work stands out here because the political commentary amongst the regulars is low-grade dog food. A fighting liberal is refreshing.

            What you find ‘refreshing,’ most normal people label as nauseating.

            You also confuse ‘soound and fury’ with this odd “bru tal” notion, and think that Malcolm’s “standing out” is somehow a good thing.

            It is not.

            “fighting” may be one thing.

            I am equally “liberal” and “conservative,” so what YOU may mean be “liberal” may be skewed by the Liberal Left’s typical notion that ANY indication towards centrality is viewed as Right Extremisim (the ongoing example is how Joe Rogan — very much a Liberal — is viewed by the Liberal Left).

            Further, your description of “low grade dog food” MORE reflects your own Peak of S (see link to ipwatchdog.com ) than any type of objective reflection.

            As to inflation and debt deflation, you make a huge mistake in thinking that only debt is so affected, when clearly such things as savings and other assets are ALSO affected. There is NO mechanism to constrain inflation merely to debt.

            This shows that econ is yet another area to which you simply have not bothered to understand the terrain and instead have glommed onto yourself just enough ‘buzz words” to engage in confirmation bias.

          4. 5.3.1.1.4

            MM is a bru tal insult comic, whose work stands out here because the political commentary amongst the regulars is low-grade dog food.

            De gustibus non est disputandum, as the Angelic Doctor would say. I cannot really agree here, but there is no accounting for tastes.

          5. 5.3.1.1.5

            “A fighting liberal is refreshing.”

            This bro thinks MM is a “liberal” lol. MM is a leftist bro. They’re not liberal. Observe him calling liberals on the board “right wing w hite supre mac ists”.

            “Hey 6, yes, inflation is debt deflation, which ain’t a just a technicality if your $200K loan only costs you $100K in nominal purchasing power.”

            Takes a whole lot of inflation to get down to that, if my paycheck is half what it was, in purchasing power, then it doesn’t really matter now does it? If I can’t buy my groceries I need for my fam (or for that matter my belove 200 dollar/mo cable package etc.), then it doesn’t really matter as I won’t make my mortgage payment anyway or else I’ve got hungry people on my hands. This sht is so hilariously academic to re res who don’t understand the day to day struggle of people at the lower end. And seem to not understand the struggle of all the people saved for retirement that are invested and now earning no/super low returns because they get eaten by the inflation.

            “but they should be more scared of deflation.”

            Technically true, but practically irrelevant as deflation is nearly a non-issue under the current debt scheme.

            “We need a soft delveraging of the national and private debts. A decade of 5% inflation could be just the thing.”

            I will disagree with that. Stealth taxes are not a glorious way to pay down people’s debts or the natl debt. Only a re re would suggest such folly which is why everyone disagrees with your dmb as.

            “It better be the rich people this time.”

            I think you’re talking about the “wealthy” not “the rich”, or at least I hope so. And as you’re aware, we just lived through the greatest upwards transfer of wealth in human history over the last 3 years. 2 the wealthy. They took no haircut re re, and they are not going to. And no increase of inflation by 2.5% per year for even 10 years would make them take one from that gigantic upwards transfer.

            1. 5.3.1.1.5.1

              I am reminded of Psacki wistfully saying that corporations would simply accept less profit and not pass costs onto consumers…

              1. 5.3.1.1.5.1.1

                It’s difficult to tell if they really are that dmb or if they just don’t get the whole economics thing.

                1. One does not have to be d()mb in order not to understand economics. Macroeconomics in particular is a complicated and subtle subject. I dare say that even those who understand it best do not understand it as well as Dusty Miller understands baseball or Richard Feynman understood physics.

  6. 4

    With all of these mandamus orders to the WD Tex, surely some of them will seek certiorari. I hope that the SCOTUS bites on one or more. Nearly any of these cases would be an ideal vehicle for the Court to assess whether the Gulf Oil factors should be revised in view of technological developments.

    1. 4.1

      +1

  7. 3

    If you think that yesterday’s mandamus orders were interesting, you should see today’s. Earl Langham Jr. petitioned the CAFC to issue a mandamus to the WD Tex ordering the district court to declare (TX death-row inmate) Rodney Rodell-Reed “free and clear of any wrong doing.” Unsurprisingly, the CAFC declined the invitation.

  8. 2

    MM: Repubs finna collapse!

    Real polls: Dems finna collapse!

    link to youtube.com

    lol pottery, but bros, will we or won’t we see True Equity (TM) here soon?

    1. 2.1

      A year from midterms is a lifetime, generic ballots always change with real names, and people hate congress, but like their congressperson. I wouldn’t be betting just yet.

      1. 2.1.1

        All true bro, but on the other hand these are literally historic lows for the last 40 years. If they don’t do something about inflation they finna take a reamin. People might put donny T in just to fix inflation (a literal very ez thing to fix btw, or at least make headway on, but Biden just won’t do it).

        1. 2.1.1.1

          But 6, THE biggest driver of that inflation is all that spending** for your “True Equity (TM)”

          **(among the other Liberal Left agenda items – not to diminish those)

          1. 2.1.1.1.1

            “But 6, THE biggest driver of that inflation is all that spending** for your “True Equity (TM)””

            Is it? I would need to see a citation on that bruh. From what I’ve seen, compared to old people benes, military, and a few other things any spending on True Equity (TM) (even if we include welfare in True Equity(TM) which I wouldn’t really do) is completely dwarfed. Not saying the costs are not high, as they actually are.

            And any of that doesn’t really directly feed into inflation so far as I know. Inflation comes from the money supply and a few other factors mostly, not the amount allocated by congress or the state gov/local gov in general. As far as I know.

            1. 2.1.1.1.1.1

              Lol / you want a citation for that?

              Maybe inform yourself of some economics and look at the free-for-all government spending on those TRILLION dollar Biden packages.

              Pull your head out.

              1. 2.1.1.1.1.1.1

                “Maybe inform yourself of some economics and look at the free-for-all government spending on those TRILLION dollar Biden packages.”

                Yeah but bro, it’s not a trilly over a year. It’s a trilly.2 over like 5 years or whatever. iirc. Call it 200 billy a year, a lot of which just goes into actual infrastructure (rather than the addons). And that is but a tiny drop in the bucket compared to the money supply. Like at least half of that bill probably needed doing at some point anyway, and would have been. Most of the fat was cut.

                link to vox.com

              2. 2.1.1.1.1.1.2

                I had to look up Leahy. I was sure that he too graduated from the YMCA. I suppose it must be his friendship to Gore Sr. and the rest of the YMCA graduates. Atty James F. Schaeffer the LIAR will tell you ask his Aunt Opal.

        2. 2.1.1.2

          The proposition that people are scared of inflation that does not hurt them personally remains vastly unproven. From GDP to wage growth to consumer demand, this is the best economy in 40 years and a lot of people are doing very, very well.

          Biden’s necessary strategy of being a quiet caretaker President is making it hard for people to actually hate the guy, despite the greatest propaganda machine in world history going full-tilt. They had a little fun with Brandon, but most people are sick of the tone and want it to end and will blow with the slightest breeze toward that end.

          Inflation is debt-deflation.

          If we have a calm deleveraging, it can all start again, but if we descend to a one-party state with the government interfering with all levers (aka the Chinese model), none of the numbers mean anything anymore, because general state terror distorts everything.

          Orange Julius is a very, very dangerous fella but there are always strong men available when self-discipline is long gone. See c.f. Shakespeare’s Julius Caesar.

          1. 2.1.1.2.1

            WOW – that Peaf of Mount S is indeed vast…

            Biden’s necessary strategy of being a quiet caretaker President is making it hard for people to actually hate the guy,

            Serious denial.

            As to who is more authoritarian between 46 and and 45, it is clear that 46 has been.

            1. 2.1.1.2.1.1

              Peaf ==> Peak

          2. 2.1.1.2.2

            “The proposition that people are scared of inflation that does not hurt them personally remains vastly unproven.”

            Bruh everyone I know had their grocery bills, and some other bills for some people, go up significantly. Same with gas (tho gas is not directly inflation related).

            How you think that this does NOT hurt them personally I cannot understand.

            “From GDP to wage growth to consumer demand, this is the best economy in 40 years and a lot of people are doing very, very well.”

            GDP growth is artificially high due to the growth of medical sector to handle covid, and needs to have inflation factored in. In such circumstance, it is not super great. Not even sure where you are getting your nums from otherwise. Yes a lot of people are doing very very well, but not the lowers, who are doing increasingly very very bad.

            “despite the greatest propaganda machine”

            CNN/MSNBC?

            “but most people are sick of the tone and want it to end and will blow with the slightest breeze toward that end.”

            Citation is needed.

            “Inflation is debt-deflation”

            Lol wut? Perhaps technically true, but who cares if you’re just stealth inflation taxing everything to “pay for” that “debt-deflation”?

            “If we have a calm deleveraging, it can all start again, but if we descend to a one-party state with the government interfering with all levers (aka the Chinese model), none of the numbers mean anything anymore, because general state terror distorts everything.”

            Who said we’re going to one-party state and who said anything about “state terrorlol”, much less the commie leftie chyna model?

            “Orange Julius is a very, very dangerous fella but there are always strong men available when self-discipline is long gone.”

            In a perfect world bro. Only in a perfect world.

            1. 2.1.1.2.2.1

              GDP growth is artificially high due to the growth of medical sector to handle covid…

              There is nothing “artificial” about GDP growth from the healthcare sector. Healthcare is a real service, of real value to people.

              1. 2.1.1.2.2.1.1

                Watch Greg get all touchy…

                (Psst, “artificial” does not mean “non-existent”)

                I wonder if Greg is feeling all cognitive dissonant given how his own bread is buttered and what the Liberal Left want to do with his buttered bread…

              2. 2.1.1.2.2.1.2

                “There is nothing “artificial” about GDP growth from the healthcare sector. Healthcare is a real service, of real value to people.”

                It was created by a commie virus that will likely recede into the background in less than 5 years. So that definitely not artificial boost will falter and we will see ODDLY smaller overall growth for a few years after that begins as those areas contract back to their normalish size. Burpa derpa. In that manner it is “artificial”.

                1. [The] virus… will likely recede into the background in less than 5 years.

                  From your lips to God’s own ears. I am less optimistic than you are on this point, but I doubt that either of us will remember this prediction by the time that it could be verified/falsified.

          3. 2.1.1.2.3

            From GDP to wage growth to consumer demand, this is the best economy in 40 years and a lot of people are doing very, very well.

            link to jabberwocking.com

      2. 2.1.2

        Polls are indeed irrelevant this far out. On the other hand, the GOP only needs to pick up five house seats to flip control, and only one senate seat. Redistricting will get them well more than five house seats, and Sen. Warnock’s senate seat is very precarious. It brings me no joy to say it, but it would be surprising if the GOP do not retake Congress in 2022.

        1. 2.1.2.1

          The R’s are favored, but the problem with a gerrymander is that at a certain point if you are losing, you REALLY lose. Goldman says unemployment will likely be at a 50 year low, and next year some of that trillion dollars of infrastructure spend will be priced into the markets, and the Fed won’t get crazy on rates, and the general deflationary pressure of worldwide productivity growth likely won’t subside that much, and China has their own problems, and does ANYONE miss Afghanistan? and finally, never underestimate the actual cultural power of the “elite”. That the R’s are soul-sick at the moment has crept into the zeitgeist. How it comes back out, nobody knows, but history is irony.

          1. 2.1.2.1.1

            “the problem with a gerrymander is that at a certain point if you are losing”

            Said the increasingly nervous man for the millionth time.

            “Goldman says unemployment will likely be at a 50 year low”

            Artificially low. We’ve still got people abandoning the job search and underemployed by the droves.

            “and does ANYONE miss Afghanistan?”

            Nobody misses it re re, what we miss is a commander that isn’t bungling.

            “and finally, never underestimate the actual cultural power of the “elite”. ”

            That I agree with. They better try to lean hard now that the general populace is starting to understand CRT and related leftism.

            1. 2.1.2.1.1.1

              That I agree with. They better try to lean hard now that the general populace is starting to understand CRT and related leftism.

              Is this not part of your True Equity (TM)….?

              Oops.

          2. 2.1.2.1.2

            [T]he problem with a gerrymander is that at a certain point if you are losing, you REALLY lose.

            From your lips to God’s own ears. Really. I wish this line of thinking comes to pass.

            From where I am standing, however, I agree with 6 that you appear to be whistling past the graveyard. The president’s party usually loses seats in the midterm, and we have very few to spare. Objectively speaking, the inmates are about to seize control of the asylum in a year.

            1. 2.1.2.1.2.1

              objectively speaking”…

              What a pompous arse.

              Maybe you and Hilary can have your whine fest over those flyover land deplorable….

        2. 2.1.2.2

          It’s one thing to FJB and the D’s. It’s another to vote for your particular R candidate.

          My prediction is the D’s hold at least one legislative branch.

          1. 2.1.2.2.1

            Pardon Potential rePeat Post (count filter)

            Interesting. Which branch and why that branch?

            1. 2.1.2.2.1.1

              I guess I’m predicting close to ‘no net changes.’ Currently, the R base doesn’t seem to be particularly motivated to go through the effort to actually vote for any of the Never-Trump R’s, the pro-impeachment R’s, the pro-BBB R’s, etc.

              1. 2.1.2.2.1.1.1

                That appears to be a very different prediction from “only one branch.”

              2. 2.1.2.2.1.1.2

                Not to be persnickety, OC, but “close to ‘no net changes’ can be three very very different things (here, the “close” may be equated to hand grenades).

                Close could yield no changes in either the Senate or the House.
                Close could yield one or the other of the Senate or the House flipping majorities.
                Close could yield both the Senate and the House flipping majorities.

      3. 2.1.3

        “I wouldn’t be betting just yet.”

        Agreed. The Supreme Court’s decisions on the various abortion related cases could easily upend the 2022 election.

        1. 2.1.3.1

          A very fair point, this.

        2. 2.1.3.2

          Might as well throw in the 2nd Amendment cases (to help rile up the Coastal Elites)….

    2. 2.2

      What does this have to do with patents?

      1. 2.2.1

        Do you need a tissue, BobM?

  9. 1

    Once you know that the motions panel was comprised of Dyk, Prost, & Hughes, you could fairly easily guess how these petitions would end.

    1. 1.1

      Once you know that the motions panel was comprised of Dyk, Prost, & Hughes, you could fairly easily guess how these petitions would end.
      What is up with that? That is a patentee death-panel if there ever was one.

      key employees related to the infringement are not in the district … None of its employees who work in Austin, Texas possess unique knowledge about the accused products … None of its Austin employees were involved with developing the accused functionalities
      All are assertions that would be extremely difficult to prove (or disprove). Also, none of these assertions establish that there are no employees who work in Austin (i.e., the typical location for big tech in WDTex) who could testify. Not possessing unique knowledge is not the same as not possessing knowledge. Not involved with development doesn’t mean lack of knowledge as to the functionalities. Also, the fact that certain “key employees” related to the infringement are not in the district does not mean that there are some employees who could testify as to infringement that are in the district.

      Here is a lovely finding from the Apple decision: “Apple asserted that its Austin-based employees have no unique knowledge about the accused products and do not hold the requisite credentials to access the secure servers hosting some of its relevant evidence.”
      Do not hold the requisite credentials? Oh golly, it would take about 30 seconds to give these employees the credentials but it is more “convenient” to move the case. The Federal Circuit is a joke.

      1. 1.1.1

        Perhaps a “just as strict” test as to permissible locations of goods to be shipped could highlight what is and what is not “convenient.”

        This is but a subtle way of denigrating patents and moving towards a view of patent infringement as a contract-style Efficient Breach.

        When you turn to the (even if only alleged) perpetrators, and suit their view as to convenience, as opposed to the actual party transgressed against, what else would a Rational Actor do**?

        ** to be certain, this “Rational Actor” is not being permitted to cognitively understand ALL of the necessary principles of equity and what exactly IS the patent right that has been transgressed (hint: it is not a physical thing at all, but a Negative Right).

        1. 1.1.1.1

          The statute expressly requires analysis of the convenience of the PARTIES – that does include the Plaintiff. In most of these mandamus cases, the Plaintiff has no connection with the WDTX at all (e.g., no witnesses there, no business there, no building there, no evidence there, etc….). Under Fifth Circuit precedent, in this scenario the Plaintiff’s choice of forum is given no deference. When the defendant shows that there are witnesses in the transferee forum, and NONE in the transferor forum, then the case has to go. This is very simple, and doesn’t have anything to do with whether you are “pro” or “anti” patent–this is the same standard that applies in every type of case. The difference is that many plaintiffs have chose WDTX for the perceived benefit of having Judge Albright decide their case. But that is not the type of “convenience” that the law regards as relevant.

          1. 1.1.1.1.1

            Thanks for this, Litig8or. What CA5 case(s) would you cite as the best illustration of the point you are making?

            1. 1.1.1.1.1.1

              footnote 10 of In re Volkswagen 545 F.3d 304 (2008) for starters. (“A plaintiff’s choice of forum, however, is not an independent factor within the forum non conveniens or the § 1404(a) analysis.”).

              1. 1.1.1.1.1.1.1

                “A plaintiff’s choice of forum, however, is not an independent factor within the forum non conveniens or the § 1404(a) analysis.”
                Not an independent factor does not mean it isn’t a factor. This is what the Court stated in Volkswagon:
                That § 1404(a) venue transfers may be granted “upon a lesser showing of inconvenience” than forum non conveniens dismissals, however, does not imply … that the plaintiff’s choice of [venue] is not to be considered.”

                This is also from footnote 10:
                Although a plaintiff’s choice of venue is not a distinct factor in the venue transfer analysis, it is nonetheless taken into account as it places a significant burden on the movant to show good cause for the transfer.
                When you reproduce more of the footnote (as opposed to cherry-picking a single statement), it gives more flavor to what the Court was actually saying.

                In Volkswagon, the Court also stated the following:
                We have noted earlier that there is nothing that ties this case to the Marshall Division except plaintiffs’ choice of venue.
                That is an extreme set of facts.

                For those interested, I would suggest a reading of the dissent in the Volkswagon case. It is an excellent read.

                1. I would suggest a reading of the dissent in the Volkswagon case. It is an excellent read.

                  Exactly. You think that the Volkswagen dissent had the better argument. Fair enough. I frequently think dissents better than majority opinions (nearly every Newman dissent, for example). Still and all, you can hardly blame the CAFC for following the Volkswagen majority. That is the CA5 law that the CAFC are supposed to apply.

              2. 1.1.1.1.1.1.2

                footnote 10 of In re Volkswagen 545 F.3d 304 (2008) for starters.

                Anything else? You seem to be retreating from the motte of “[u]nder Fifth Circuit precedent, [where the Plaintiff has no connection with the WDTX] the Plaintiff’s choice of forum is given no deference,” to the bailey of “[a] plaintiff’s choice of forum, however, is not an independent factor within the forum non conveniens or the § 1404(a) analysis.” Your citation does not quite carry as far as your characterization of CA5 precedent in 1.1.1.1.

                1. Garner v. Wolfinbarger, 433 F. 2d 117, 119 (5th Cir. 1970) (“That factor [plaintiff’s choice of forum] is not controlling. Ultimately the trial judge must use his discretion.”).

                  In re Horseshoe Entertainment, 337 F. 3d 429, 434 (5th Cir. 2003) (“Finally, we believe the Middle District Court erred in attributing decisive weight to the plaintiff’s choice of forum. We believe that it is clear under Fifth Circuit precedent that the plaintiff’s choice of forum is clearly a factor to be considered but in and of itself it is neither conclusive nor determinative.”–granting mandamus).

                2. Note that I did caveat my remark with “where the Plaintiff has no connection with the WDTX.” I believe that on those facts, my statement is correct. The plaintiff’s choice will in effect be given no deference when it has no connection to the venue, and when the defendant also has no material witnesses in the chosen venue. That is the common fact pattern in all of these Albright mandamus decisions. He keeps making the same mistake over and over. He uses (erroneously!) as a trump card that he sets an aggressive trial schedule. That factor doesn’t matter when none of the other factors favor keeping the case in the WDTX.

                3. Here is a strong statement from JUDGE ALBRIGHT HIMSELF:

                  As in DataQuill, ADTRAN’s witnesses are all located in the transferee forum. Furthermore, Correct Transmission does not have a presence in the Western District of Texas besides filing this and other lawsuits, and the Fifth Circuit “forbids treating the plaintiff’s choice of venue as a factor in the analysis of a request to transfer….” In re Nintendo Co., Ltd., 589 F.3d at 1200.

                  Correct Transmission LLC v. ADTRAN, Inc., No. 6:20-CV-00669-ADA, 2021 WL 1967985, at *5 (W.D. Tex. May 17, 2021)

                4. I did caveat my remark with “where the Plaintiff has no connection with the WDTX.” I believe that on those facts, my statement is correct.

                  I do not doubt that you believe as much. None of your citations, however, go as far as your contention that “[u]nder Fifth Circuit precedent, in this scenario… [w]hen the defendant shows that there are witnesses in the transferee forum, and NONE in the transferor forum, then the case has to go” (emphasis added).

                  Volkswagen provides a multifactor balancing test. No one or two factors (even location of witnesses) is put forward as controlling.

                5. This very much appears to be a power struggle over who exactly gets to choose to do the balancing.

                  (which again tips to the inordinate power of Ends justify the Means and why — especially in law — this need be guarded against)

          2. 1.1.1.1.2

            When the defendant shows that there are witnesses in the transferee forum, and NONE in the transferor forum, then the case has to go.
            There are multiple factors involved — not just convenience of the witnesses.

            Also, transfer is not mandatory (i.e., “a district court MAY transfer any civil action”).

            The difference is that many plaintiffs have chose WDTX for the perceived benefit of having Judge Albright decide their case.
            So, defendant has a presence in A, B, C, D, E, F, and G, but gets sued at F. However, defendant likes B the best because they are an anti-patent court [cough … NDCal … cough] so they stipulate that the witnesses they intend to call are in NDCal. In essence, they get to pick the court. With that in mind, how is plaintiffs choosing WDTex different than plaintiffs choosing NDCal?

            As I noted above, these companies argued that the witnesses they intended to call were elsewhere. However, that doesn’t establish that they didn’t have local employees who could testify. It is beyond incredibly easy for these companies to game the system.

            I was reading the In re Google decision from Monday, and the Federal Circuit only included a single 5th Circuit citation. Rather, the vast majority of the citations are Fed. Cir. decisions. In essence, the Fed. Cir. is gaming the legal system by creating case law that cannot be reviewed by the 5th Circuit.

            1. 1.1.1.1.2.1

              This:

              Also, transfer is not mandatory (i.e., “a district court MAY transfer any civil action”).

              has been 1984’d.

              How dare you question the narrative.

            2. 1.1.1.1.2.2

              Also, transfer is not mandatory (i.e., “a district court MAY transfer any civil action”).

              Ours is a common law justice system, not continental civil law. A statute’s meaning in our system is not just what the words mean to you, but rather what an authoritative appellate tribunal construes the statute to mean. The CA5 has ruled out your reading of §1404 when it took Volkswagen en banc. The reading that you want to give the statute is the one that the original CA5 three-judge panel gave it, but the en banc court repudiated that reading.

              What you are arguing is not law, but merely your private opinion. Fair enough, of course. You are an advocate by profession, so it is appropriate for you to argue an opinion favorable to your clients’ interests. The CAFC are not advocates, however, but judges. Their duty is to apply the law, and that is what they are doing here. This is the CA5 law on this point.

              1. 1.1.1.1.2.2.1

                Minor correction: this is what the CAFC has said the CA5 law is.

                And Greg lecturing others on “advocacy” and portraying private opinions as something else is beyond chutzpah.

                1. None of the “private” and “public” factors that the Fifth Circuit uses are mentioned in the statute. The statute is broadly written and has been interpreted to include the factors used by the Fifth Circuit. (Other Circuits use similar factors). So the fact that the statute merely says a case “may” be transferred is not some trump card to let district court judges do anything they want.

                2. FINAL POINT. Some on this thread have confused “forum non conveniens” with 28 USC 1404. The Supreme Court has explained that there is a difference.

                  Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955):

                  When Congress adopted § 1404 (a), it intended to do more than just codify the existing law on forum non conveniens. As this Court said in Ex parte Collett, 337 U. S. 55-61, Congress, in writing § 1404 (a), which was an entirely new section, was revising as well as codifying. The harshest result of the application of the old doctrine of forum non conveniens, dismissal of the action, was eliminated by the provision in § 1404 (a) for transfer. When the harshest part of the doctrine is excised by statute, it can hardly be called mere codification. As a consequence, we believe that Congress, by the term “for the convenience of parties and witnesses, in the interest of justice,” intended to permit courts to grant transfers upon a lesser showing of inconvenience. This is not to say that the relevant factors have changed or that the plaintiff’s choice of forum is not to be considered, but only that the discretion to be exercised is broader.

                3. but only that the discretion to be exercised is broader.

                  Discretion….

                  Whose discretion,…

                  … and does that not make what the CAFC doing a bit MORE of a 1984 to the meaning of discretion?

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