Venue: Out of Texas

In re Quest Diagnostics (Fed. Cir. 2021)

Ravgen sued Quest in W.D. Texas for infringing two patents covering pre-natal genetic tests. As the map shows below, Quest has dozens of “places of business” open within the Western District (Waco and Austin areas) where Quest was selling the services.  So, venue was proper under the narrow venue statute for patent cases, Section 1400(b).  Likewise, the court has personal jurisdiction over the defendant with Quest’s Texas-based operations allowing for specific jurisdiction under the minimum contacts test of International Shoe.   But, even when jurisdiction and venue are proper, they may still be inconvenient.

Here, the Federal Circuit has again ordered Judge Albright to release this case and transfer it to a more convenient venue of the Central District of California.  The basic issue is that Quest designed and developed the tests in C.D. Cal., and it uses those same labs to actually conduct the genetic test.  Quest’s primary argument for keeping the case in Waco is that there are already three other cases before Judge Albright involving the same two patents (Ravgen vs PerkinsElmer, vs. Natera, and vs. LabCorp).

The parties did not point to any non-party witnesses, but Quest did point to the long travel time from C.D.Cal., to Waco, and the Federal Circuit indicated that the district court should have placed more weight on that factor and also erred by not considering travel convenience in a more wholistic manner.

In his order, Judge Albright had noted that his familiarity with the patents at issue and his push for quick trial weighed heavily in favor of keeping the case in Waco.  However, the appellate panel found that Albright should not account for any of his familiarity learned after Quest filed its motion for transfer.   In addition, the Federal Circuit restated a prior holding that “it is improper to assess the court congestion factor based on the fact that the Western District of Texas has employed an aggressive scheduling order for setting a trial date.”  Quoting Juniper.

Transfer ordered.

60 thoughts on “Venue: Out of Texas

  1. 11

    “[E]very successful proponent of overruling precedent has borne the heavy burden of persuading the Court that changes in society or in the law dictate that the values served by stare decisis yield in favor of a greater objective.” Vasquez v. Hillery, 474 U.S. 254, 266 (1986) (emphasis added).

    “The Constitution… must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. The language of the Constitution, as has been well said, could not be understood without reference to the common law.” United States v. Wong Kim Ark, 169 U.S. 649, 654 (1898) (internal citations omitted).

    “There is no common law of the United States… distinct from the common law of England… and subject to such alteration as may be provided by its own statutes… The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” Smith v. Alabama, 124 U.S. 465, 478 (1888).

  2. 10

    Dennis and Jason, it’s been pointed out before that a number of your commenters are white supremacist c r e e ps who traffic and promote toxic Q / proud boy waste here.

    Maybe do something about it instead of giving them another platform?

    Or own it. Because the flag will be thrown.

    1. 10.1

      …. ?

      What you deem to be “in that one bucket” is known to be a fallacy, Malcolm.

      This (ongoing) feeble attempt to gaslight the blog editors is beyond feeble.

      1. 10.1.1

        “This (ongoing) feeble attempt to gaslight”

        Let the record show that Billy doesn’t know what “gaslight” means, or he pretends not to know. Regardless, what we all know for sure is that Billy has no problem at all with gaslighting.

        The bottom line is Dennis and Jason are ultimately responsible for the comments. And when those comments are plainly infused with fash / white supremacist talking points and memes and the people making those comments are notorious liars (like you Billy) obsessed with “campus PC” (lol) . affirmative action, and non-existent “Marxists” it really takes a mowrahn or an investor/promoter to continue to provide a stage for it.

        So which one are you, Dennis?

        1. 10.1.1.1

          The bottom line is Dennis and Jason are ultimately responsible for the comments.

          translation: “Wah, someone said something that does not fit within my bubble, so they must be bad – and must belong in that “one bucket” of the worst people that I can think of.”

          Maybe instead of spouting your nonsense, replete with those “feelings,” you actually pay a little better attention, and deal with the merits of the many counter points presented to you (now for well over a decade).

    2. 10.2

      MM’s leftist quest for censorship continues I see.

      “Dennis and Jason, it’s been pointed out before that a number of your commenters are white supremacist c r e e ps who traffic and promote toxic Q / proud boy waste here.”

      Well, accused anyway, by leftists.

      I am dying to know though what “Q” or “proud boys” “waste” is here in your opinion. I don’t really keep up with either group, but I have to admit I don’t remember anything I would think interested either group on PO.

      Also friendly reminder, MM is L I T E R A L L Y the only known rac ist on the board. How you doin on working on your own ra cism MM?

      “Because the flag will be thrown.”

      NOT THE FLAG, BRO! DON’T THROW IT!

      1. 10.2.1

        He cannot battle on the merits, so he needs cens 0r ship.

      2. 10.2.2

        MM’s leftist quest for censorship continues I see.

        It’s not just OLD Lefties either:

        https://www.insidehighered.com/news/2021/08/31/fire-launches-new-database-tracking-attacks-speech

  3. 9

    Seems off topic, but the more I have thought about this new director the more worried I am.

    Let’s remember that Biden is doing radical things and is controlled by the left. Bernie Sanders has said that patents are a tool of the rich to take money from the poor. Noam Chomsky says the same thing.

    If these people control the agenda of Biden’s patent system, then we may be in for a crash like we have never seen.

    I just hope that patents are enough of a backwater that the radical left leaves them alone for now (or maybe they are bought off by various interests. They need those new jets to fly around and push Marxism.)

    Anyway…..watch out…and hope that we are a backwater and Biden’s stated goal of racially transforming the USA in his first two years so it can’t be turned into a different direction doesn’t include the patent system. (We are dealing with Marxist who don’t believe in patents.)

    1. 9.1

      Plus you know that patents are more r a c i s t than the roads and a tool of w h * t e suprem*cy throughout the world.

      Just reality in how the radical left view the patent system. Not even hyperbole. (Just read what Chomsky and Sanders have said about patents.)

      We just have to hope that we are enough of a backwater that we won’t be in the purge.

      1. 9.1.1

        One ‘saving grace’ is that the Liberal Left has NO boundary to their own Leftism, and are apt to “eat their own.”

        Just look at how the Liberal Left treat left of center folk that are not “Left enough” — yourself, and the more widely known Joe Rogan.

        1. 9.1.1.1

          Yup. Been a liberal D for many decades and I am called all sorts of names and shunned now.

          1. 9.1.1.1.1

            “Been a liberal D for many decades and I am called all sorts of names and shunned now.”

            Awwww, poor little baby.

            Anyone who believes this please contact me about an amazing and historic bridge I have for sale.

            1. 9.1.1.1.1.1

              The return of the b a b o o n in the form a “The Poopy Diaper.”

            2. 9.1.1.1.1.2

              “Anyone who believes this ”

              Are you literally questioning that he has likely voted D for like 30 years? I mean really? You can see his posting history back years back, and just note the turn to the left in the dems of recent years and know he’s probably telling the 100% truth.

      2. 9.1.2

        “Just reality in how the radical left view the patent system. Not even hyperbole. (Just read what Chomsky and Sanders have said about patents.)”

        Probably technically true, as it makes sense under the overall ideology, but I have missed those quotes, you should link or quote directly as that is somewhat important.

    2. 9.2

      The thing is, a strong, eligibility-stable patent system actually provides an important path to success for all inventors, regardless of who they are.

      Which folks like Sanders and Chomsky should strongly embrace.

      For without patents — defensible patents — for the little guy and gal, the corporate behemoths steal their innovations with impunity and wipe them out.

      Patents are an important step up and out.

      1. 9.2.1

        “Patents are an important step up and out.”

        Right. But a Federally mandated minimum wage is total communism.

        You do realize that patent huffers like you are walking punch lines and also a stain on the both the patent system and the legal system?

        You spew out this self-serving “patents are the greatest!1!” nonsense day in and day out but when it comes to any remotely nuanced discussion of the legal-practical issues of your positions you crumple up like a gas-filled snake that’s been tossed on a Boy Scout’s campfire.

        1. 9.2.1.1

          replies caught in filter (Count filter, George Carlin filter, or both)

        2. 9.2.1.2

          “a Federally mandated minimum wage is total communism.”

          Thankfully, we do have a fed min wage. But it should be $10 – 12/hr (and automatically adjusted for inflation). Any company that can’t afford to pay their lowest-paid, hard-working employees at least this amount shouldn’t be in business.

          It is, however, sad that Dennis has allowed you back in.

          Your mean, nasty, unprofessional personal attacks are a stain on PatentlyO.

          A stain Dennis should once again remove.

          Permanently.

          Just as Gene has done.

          1. 9.2.1.2.1

            Pro Say,

            I have in the past discussed the differences in editorial controls.

            Mentioning this to Malcolm is likely to make him go apoplectic, given that he has an odd 0bsessive fascination with Quinn.

            That being said, IPWatchdog’s general policy does allow some of the verbal jousting and “John Maynard Keynes” treatment of the unthinking (that is, with sharp words). He also generally warns those who step over the line. He does NOT put up with deliberate falsehoods. Certainly, there are those who attempt to defeat his efforts to remove those who engage in reckless fallacies (and I have pointed out to him that he could employ a better filter of requiring a TRUE email address).

            Even so, it remains difficult to make people engage on the merits of points and counter-points. My druthers would be that if a counter-point is put to someone, and that someone does not address that point, but chooses instead to run the same initial line again and again (as if the counter-point was never made), then THOSE offending posts would be eliminated.

            There is nothing wrong in being able to express one’s opinion – no matter how ill- (or non-) informed that opinion may be. There IS something wrong in purposefully ignoring counter-points and views that INFORM the opinion.

            1. 9.2.1.2.1.1

              To insure clarity, anon my friend, while in a perfect world everyone “pointed and counter-pointed” everyone else’s comments (something I also by choice do / don’t do), it is malcolm’s singulary and repeatedly mean, nasty, unprofessional personal attacks which are the stain on PatentlyO.

              Not the repartee among and between commenters.

              1. 9.2.1.2.1.1.1

                It’s less the more or less random “choose not to,” and more the “rampant propaganda that falls flat DUE to the counter points.

                That type of “advocacy” is basically the ultimate ‘rudeness’ of
                L
                Y
                I
                N
                G.

    3. 9.3

      “Bernie Sanders has said that patents are a tool of the rich to take money from the poor. Noam Chomsky says the same thing.”

      Probably technically true to an extent, but a minor one. Advances aren’t going to fund themselves, the poor and the middle and the upper all must make a contrib to get the new tech under a patent regime (or even under a commie-patent regime as we’ve seen).

      “I just hope that patents are enough of a backwater that the radical left leaves them alone for now (or maybe they are bought off by various interests. ”

      For now prob, but by the time I’m retiring, prob not.

      “Biden’s stated goal of racially transforming the USA in his first two years so it can’t be turned into a different direction doesn’t include the patent system.”

      Did he outright state that bruh? I mean yes, he n his overall would like to stuff the ballot box more with ballots nigh wholly controllable by his race-based-media broadcasts from CNN/MSNBC etc. but I didn’t realize that he was so blunt about it as of yet. And he stated he wanted to do that in 2 years? I mean, that seems unlikely even if that was his stated goal, esp without substantive immigration reform and double esp with him deporting at the rate he is.

      1. 9.3.1

        6, Biden did say exactly that.

        Sanders/Chomsky are opposed to patents.

        1. 9.3.1.1

          Willing to hear ya out, but need links and cites.

  4. 8

    ““it is improper to assess the court congestion factor based on the fact that the Western District of Texas has employed an aggressive scheduling order for setting a trial date.” Quoting Juniper.”

    Must be nice being able to rely on your own b.s. decisions . . . to justify later b.s. decisions.

    Welcome to the CAFC.

    1. 8.1

      The CAFC is expressing the comparative case congestion issue politely. The asserted factual “b.s.” is the date differences between the “aggressive scheduling order dates” for trial and the actual trial dates in that court. [“Aggressive” = unrealistic?]
      [But as others have pointed out, time to case final disposal dates would be a better court comparison basis anyway since only a small percentage of filed suits in federal courts in general ever get to trial.]
      Whether or not relative court congestion is or should even be legally relevant for inconvenient forum decisions is a whole other issue in itself.

      1. 8.1.1

        expressing the comparative case congestion issue politely

        Being polite at the expense of resolution is a VICE, not a virtue.

        1. 8.1.1.1

          As to whether or not aggressive is in fact unrealistic, one needs to recognize the FACTS of just how VERY FEW cases actually proceed.

          See link to ipwatchdog.com with ACTUAL TRIALS (total) only in the hundreds.

          This is part and parcel of the Kool-aid having been quaffed by those buying the “Oh N0es, Tr011s” propaganda.

          But why let those facts get in the way of your cheerleading?

  5. 7

    It must be rough to be a sh-tty judge in a sh-tty part of a sh-thole state. From a safe distance, though, it’s worth the laughs.

    I wonder how terrible the asserted claims are.

  6. 6

    It is no accident that “convenience” has meaning that falls into the same family as “Efficient” (as in, Efficient Infringement).

    The notion of Personal property is further denigrated.

  7. 5

    “However, the appellate panel found that Albright should not account for any of his familiarity learned after Quest filed its motion for transfer.”

    Seems worth noting that Albright took almost almost eight months to handle the motion to transfer.

    1. 5.1

      Let’s not be too harsh on this obviously mentally challenged judge. His clerks are scraped no doubt from the bottom of the same cheese barrel where he was discovered.

      Maybe he can do that thing Texas patent attorneys love to do: weep like a baby in open court. LOL

  8. 4

    Footnote 1 says “Ravgen’s case against PerkinElmer was dismissed on September 30, 2021 based on a joint stipulation.”
    Was there no venue challenge in the other cases?
    But if the same two patents are involved, even with different parties, would not case consolidation in the same D.C. be desirable?
    Is not a per curium grant of a mandamus request signed only by a law clerk, as here, unusual?

    1. 4.1

      Is not a per curium grant of a mandamus request signed only by a law clerk, as here, unusual?

      No. Mandamus petitions are typically handled by the motions panel, without oral argument, and typically resolved by unsigned per curiam orders. Sometimes individual judges choose to sign motions panel orders, but that’s the exception rather than the rule.

      Go to this page, select “RIT” under the “origin” filter, and you’ll see this. link to cafc.uscourts.gov

  9. 3

    Always a hoot to listen to the patent huffers wax on about “everything is computerized because of course everything is computerized” when it comes to choice of venue.

    But those ridiculous “do it on a computer” claims? Why that stuff is sooooo cutting edge that nobody except a genius programmer is qualified to even discuss how non-obvious and patent-worthy they are.

    In other news, my AI machine is filing a lawsuit against the USPTO because it is being treated unfairly. This is not a joke! It’s a very serious machine and it’s so smart nobody knows how it reaches its momentous decisions.

    1. 3.1

      Hi poopy pants – that’s quite a collection of feelings that you have there.

      1. 3.1.1

        It’s “The Poopy Diaper.” The b a b o o n redux.

        1. 3.1.1.1

          I stand corrected.

  10. 2

    Why would anyone expect a decision by Dyk/Prost/Hughes to be different.

    Pulling a “bad” panel guaranteed this result…regardless of any reasonable analysis of the factors or underlying assumptions of the judges’ familiarity with the patents/parties and his discretionary authority.

    Convenience of the defendants witnesses is only ONE of several factors (and one that should be almost nil in these days of computerized testimony and record-keeping)…while the greater harm (introduced by the average additional two-three years of delay in getting to trial from going to a separate district) is typically ignored.

    1. 2.1

      Pulling a “bad” panel guaranteed this result…regardless of any reasonable analysis of the factors or underlying assumptions of the judges’ familiarity with the patents/parties and his discretionary authority.
      +10

      Convenience of the defendants witnesses is only ONE of several factors (and one that should be almost nil in these days of computerized testimony and record-keeping)…while the greater harm (introduced by the average additional two-three years of delay in getting to trial from going to a separate district) is typically ignored.
      +10

      Clear judicial error is the standard — a standard not being applied.

  11. 1

    9 mandamus granted against WDTX since the end of September. The Court continues to make the same mistakes, over and over. When there are ZERO witnesses in a forum, the case doesn’t belong there.

    1. 1.1

      witnesses in a forum
      … is a very small part of modern patent litigation.

      1. 1.1.1

        That’s the opposite of what this mandamus decision says. What factors in your view are more important for venue convenience in modern patent litigation? [That is not an academic question, since if this unique WSDTX mandamus deluge continues one may end up at the Sup. Ct.]

        1. 1.1.1.1

          The Fed. Cir. also noted here that Waco has no direct flights to where any witnesses are w/o a hundred mile drive to somewhere else.
          Also, one gets the distinct impression that the Fed. Cir. is getting seriously p–st that J. Albright has again delayed deciding venue transfer motions – 8 months of delay here – while he conducts Markman’s or other pre-trial matters, which are then used to rationalize transfer refusals, after having been told before that venue should obviously be decided first, before delving into the case.

          1. 1.1.1.1.1

            Also, one gets the distinct impression that the Fed. Cir. is getting seriously p–st that J. Albright has again delayed deciding venue transfer motions – 8 months of delay here – while he conducts Markman’s or other pre-trial matters
            Heaven-forbid. Justice is not getting delayed because Albright is moving things along. The Federal Circuit cannot countenance that. Rather, the Federal Circuit would rather ship the case off to the CDCal where the case will either languish (because district courts generally don’t like patent cases) or the district court will kill the patent on a 12b6 motion to dismiss (for the same reason).

            Why is it that complex litigations aren’t being transferred all the time elsewhere? It isn’t like patent cases are the only litigations in which big companies get sued and they have lots of witnesses elsewhere. They don’t get transferred because transfer is at the discretion of the district court and that discretion is reviewed for clear judicial error.

            The patents are being transferred — not because of the convenience of the witnesses — but because of the efficiency of other courts in killing the patents. If you support more efficient patent killing, then just admit to it. Just don’t wrap yourself up with convenience of the witnesses when it is an minor inconvenience as compared to all the other inconveniences (to both sides) that are associated with a patent litigation.

            1. 1.1.1.1.1.1

              My emphasis added:

              The patents are being transferred — not because of the convenience of the witnesses — but because of the efficiency of other courts in killing the patents

              See my post above at 6.

              Note as well that it is the SAME anti-patent leaning people applauding this.

            2. 1.1.1.1.1.2

              What makes you think this case is “complicated”?

              Have you seen the claims?

          2. 1.1.1.1.2

            In regard to my 2d paragraph above, the Fed. Cir. had previously said in the October Netflix mandamus that: “Delays in resolving transfer motions, coupled with ongoing discovery, claim construction, and other proceedings, frustrate the purpose of § 1404(a) by forcing defendants “to expend resources litigating substantive matters in an inconvenient venue while a motion to transfer lingers unnecessarily on the docket.” In re Google Inc., No. 2015-138, 2015 WL
            5294800, at *1 (Fed. Cir. July 16, 2015). A stay of merits proceedings is appropriate relief if the district court cannot decide a venue motion quickly enough to avoid burdening the moving party with unnecessary expense and prejudice. We have issued writs of mandamus staying district court proceedings for similar delays in addressing venue motions. See, e.g., In re TracFone Wireless, Inc., 848 F. App’x 899 (Fed. Cir. 2021); In re SK hynix Inc., 835 F. App’x 600 (Fed. Cir. 2021); In re Google, 2015 WL 5294800.”

        2. 1.1.1.2

          That’s the opposite of what this mandamus decision says.
          One is the reality. One is an excuse.

          if this unique WSDTX mandamus deluge continues one may end up at the Sup. Ct.
          The Federal Circuit better hope not.

          1. 1.1.1.2.1

            I expect that we are all hoping—by this point—that one of these writs goes up for SCOTUS review. As you say, litigation has changed since the Gulf Oil factors were handed down. Any of these cases would make a worthy vehicle for the SCOTUS to reassess whether changes are needed in view of technological and social changes.

            1. 1.1.1.2.1.1

              “whether changes are needed in view of . . . social changes.”

              Under the U.S. Constitution, that’s not the job of the judiciary, including not of SCOTUS.

              Though you wouldn’t know it from some of their decisions.

              1. 1.1.1.2.1.1.1

                Forum non conveniens is a common law doctrine. The Constitution definitely leaves the settlement of questions about the common law to the courts

                1. Since Marty is NOT an attorney, he is not aware that attorneys are not ethically permitted to entertain the false statement that he has made.

                2. Because common law does not legally justify making changes in view of social changes, my unconstitutional statement is accurate.

                3. Actually Pro Say, you are not correct here in regards to what common law involves.

                  You would be better off recognizing that the APPLICAITON of common law is not open for a free-for-all by the judicial branch, especially in patent law, which is one of the select areas of law — set aside by the Constitution — to be in the domain of a particular branch.

                  That branch is not the judicial branch.

                  So while Marty is most definitely deep in the weeds on his feelings as to separation of powers, there very much is a Constitutional separation of powers issue when it comes to explicit patent law.

                  Where common law is permitted under the Constitution (in the form of writing law anew, rather than interpretation), the making of that common law very much CAN include making changes in view of social changes (think of Tort law, for example).

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