Watch Party Moves to N.D.Cal.

In re Netflix (Fed. Cir. 2022)

This was an easy mandamus transfer.  The plaintiffs, CA Inc. and Avago Technologies Int’l,  are both subsidiaries of Broadcom Corp. The plaintiffs are both headquartered in San Jose and Broadcom is down in Southern California.  Netflix is also Silicon Valley. Still, the plaintiffs sued Netflix for patent infringement in the Eastern District of Texas.  Although Netflix itself does not have a place of business in EDTex, the district court found that its intimate relationship with ISPs to provide local content delivery was sufficient.  The vast majority of Netflix content is delivered directly from local residential Internet Service Providers (ISPs).

The district court also refused to transfer for inconvenient forum. Although N.D. California was certainly the locus-of-relevant-events, the court noted court congestion and access to evidence weighed against transfer.  Although the source code is located in N.D. California, the court saw no evidence showing that it would be difficult to get that data to Texas. Netflix does have more internet traffic than any other company, right!

On mandamus, the Federal Circuit only addressed the inconvenient forum question — ordering the case transferred.   The appellate panel particularly focused on the district court’s apparent bias against transferring venue.  In particular, the district court discounted Netflix arguments of evidence availability because Netflix did not “articulate the precise way that the evidence supports its claim or defense.”  At the same time, the court did not place the same precision requirement on CA regarding its evidence.  This bias was improper:

[W]e see no basis for reasonably demanding more from Netflix than it provided at this stage of the litigation, when a transfer motion must be filed and ruled on. . . . Nor have we been shown any reasons here to doubt that the documents and sources would be relevant and material to the issues here.

Id.

 

135 thoughts on “Watch Party Moves to N.D.Cal.

  1. 10

    Greg, thanks for the reference and the good question why not just advocate to limit the “process” category to “processes for the physical transformation of matter”?

    Firstly, that would directly contradict Bilski, which is a problem. Secondly, that doesn’t solve the policy problem of items like encryption, compression, novel algorithms for information processing & other information controls/results that provide incremental utility in a variety of applications – the policy problem being that many people intuitively belive that patent protection is appropriate for those technologies. It does solve the problem of new and useful information that people use to make useful decisions or perform useful acts- a problem that has to be solved because subjecting that utility to patent protection is in tension with human freedom and the expansion of human culture.

    I’m fine with MM’s policy preference that no information results be allowed, but I don’t think that can find consensus, and again, this is a political problem. Law and policy simply cannot be separated.

  2. 8

    The Ds are (ostensibly) not fans of big business and the Rs are not happy with big tech- it seems like right now there should be a compromise position possible where companies of some threshold value or threshold sales can be sued where their services/products are consumed.

      1. 8.1.1

        The fees to obtain a U.S. patent are already severely percentage-wise discriminatory against large entities as compare to two smaller size entities, and no one has challenged that. Should they?

  3. 7

    Wandering, Routers and switches and and fiber lines are not abstractions.

    The IP protocol is intangible, but not abstract, because no human mind uses IP data to arrive at a meaning. Without mind or meaning, there can be no abstraction.

    The graphical presentation of Netflix’s movie selection menu, on the other hand, is a complete abstraction because its meaning is only useful to the mind of a user.

    Try to keep up anon. Now we have a new thread for you to fall behind upon.

    Traffic lights.

        1. 7.1.1.1

          Ideas are comprised of thoughts and thinking requires space and energy. Therefore, to the extent that consuming space and energy makes something tangible, ideas are tangible.

          1. 7.1.1.1.1

            You may well be confusing the thinking of an idea with the idea itself.

            Certainly, in the grey mass (sometimes more, sometime less) of the physical physio/electro-chemical tangible mass of a brain – in which the obtuse and purposefully misleading reference to Night Writer’s views was cogitated, “thinking” occurred in a tangible instant.

            But the map is not the land, and the thinking is not the idea.

            1. 7.1.1.1.1.2

              You are confusing ideas and expressions of ideas. Also, your confusion consumes space and energy.

              1. 7.1.1.1.1.2.1

                My pal NS II

                On the contrary, the act of expression is quite separate from my reply and involves different physical elements.

                You project confusion in error, and need to look within.

                As is typical.

                Also – as the count filter is active and my posts are limited (today), consider your double posts below to be picked up here — as would be fitting because there I did NOT in faact change the subject, and merely reflect back to you your obtuseness here. YOU were the one that put forth the type of “actual physical” present, so I just threw that right back at you.

                I noticed that you attempted to move the onus to me, but I reject that – the ball remains in your court.

    1. 7.2

      Please Pardon Potential rePeat (filter yet again)

      Your comment is awaiting moderation.
      January 20, 2022 at 3:45 pm

      You do realize that “traffic lights” works against you, eh?

      But you keep on being you (and by the way, you have fallen behind again on the other thread, so your recrimination mirrors your oh-so-typical state of being wr 0 ng, yet again).

      1. 7.2.1

        Whoever may be scoring these threads doesn’t need to pay much attention. You’ve been playing for the Generals for years. Someday you might score a bucket, but not really, I’m just being nice…

        1. 7.2.1.1

          You are not being “nice” in your errors and your running away.

          It is delusional for you to think that what you are doing is “being nice.” Just as it is delusional for you to think that you need not bother understanding the terrain upon which you would do battle.

          But go ahead and you be you and say things like “traffic light” that show how far into the weeds you are.

          (Reference to me as playing for the Generals when you do such things is ironic beyond measure)

    2. 7.3

      Martin, I have a question for you.

      I get your definition of abstraction as only something that is consumed by a human as an abstraction can only exist in a human brain.

      OK. Interesting. But why would a graphical display of a menu be an abstraction? You could say that the human views the display as an abstraction but that doesn’t mean the display itself is an abstraction only that its perception is an abstraction.

    3. 7.4

      Martin, et al, there have been endless dictionary-type semantic arguments about unpatentable claim “abstractions” since neither the Supremes or the Fed. Cir. have defined it. But for anything like a patent-useful definition one can only look at what kind of patent claims the cases have applied it to, and that includes broad “preemption” or “any way to get the desired end result” claims, not decided by dictionary-type semantic arguments, such as arguments about “tangible” or “ideas.”

      1. 7.4.1

        Paul,

        IF ONLY what you say were true and not bogged down by the Gordian Knot present in such cases — as has been expressly noted by leading members of all three branches of the government (as well as yours truly).

        Your suggested path is already in the weeds.

      2. 7.4.2

        Night lets make sure we are talking about the same things. The vehicle of the display: the screen, the graphics drivers, all the software that’s used to arrange pixels etc. operate without regard to what’s being displayed. None of that is abstract, even if the software elements are intangible. The utility is of an identical nature for every user.

        But once we start talking about the human meaning of the information shown- the aesthetics of the arrangement, or the utility arising when a person makes a decision or completes an act- that utility is different for every user: useless for some, delightful for others.

        The meaning, and thus the utility, is an absolute abstraction.

        Maybe you like to close windows with click in the corner, and someone else with a click in the middle…that “utility” is in the eye of the beholder. It should not be protectable by a patent. Maybe you like a map of stores in the mall with color codes, and others like a map with a 3D projection, and others like a map with the stores arranged by type, and others arranged by alphabetical order. Patenting how a map is displayed to a person is patenting a complete abstraction and should not be allowed.

        It need not even involve a computer. In the case of maps: the arrangement and display of a map fixed in any medium is subject to copyright, even though the utility of the map in question may be the reason to use it.

        Yet if the media is better, it can (and should) be patented, because the improvement does not depend on the specific information contained in the media being improved.

        Information used by people for human purposes should be beyond the reach of the patent system.

        Information used by non-human actors offers the same utility to each of those non-human users, and is machine component, properly the subject of the patent system.

        Paul, the fact that so many consequential results flow from the meaning of the word “abstract”, while the word remains completely undefined, is a failure of due-process.

        1. 7.4.2.1

          Martin, machines and humans now perform very similar functions in information processing. So information provided to a human is valuable.

          But you didn’t answer my question. I am asking about the structure that is generating those menus/interfaces. There is structure there. A machine with structure that requires space, time, and energy to produce those structures. Remove the human if you want, but still there is a machine there that is producing menus.

          1. 7.4.2.1.1

            And I keep saying the utility aspect to produce A menu should be eligible, but the human utility of THE menu should not be. The distinction is where the utility happens- in a human mind is abtract & off limits.

            1. 7.4.2.1.1.1

              What you keep saying, Marty, lacks connection to the terrain of patent law.

              the human utility of THE menu should not be.

              The ONLY utility of a traffic light IS IS the human utility.

              ALL utility – in the patent sense – is necessarily evaluated in the human mind.

              Marty – until you grasp this terrain, the ‘battle’ that you choose to engage in is ever lost to you.

              1. 7.4.2.1.1.1.1

                You keep saying that, and you are wrong. The fine arts offer utility, and nothing in the patent act says they are off limits, but they are. Games offer utility, but principled people differ if entertainment is the kind of utility that should be covered. Technical diagrams offer utility, but they are off limits, and nothing in the patent act says they should be. Printed matter offers utility….but…..

                So, using your favorite construction, you are wrong

                1. You keep saying that, and you are wrong.

                  No, I am not wrong – and YOU keep on getting what I am saying wrong – most likely BECAUSE you cannot be bothered with the terrain of patent law.

                  Here:

                  You misstated my views (and I corrected you – and you ran away): link to patentlyo.com

                  And now you misstate again:

                  The fine arts offer utility, and nothing in the patent act says they are off limits, but they are.

                  Useful Art – ever hear of that? You should. I make it a point all the time. Fine arts are expressly outside of the Useful Arts.

                  Quite in fact, I was explicit in drawing the distinction between playing a violin (Fine Arts) and making a violin (Useful Arts) directly in the hyperlink above.

                  I also state the actual two statutory aspects of 101 (as understood by those who know the terrain):

                  link to patentlyo.com

                  Games offer utility, but principled people differ if entertainment is the kind of utility that should be covered.

                  ALSO covered – and the notion that “principled” somehow means that it is ok to get the law wrong is just not so.

                  Technical diagrams offer utility, but they are off limits, and nothing in the patent act says they should be.

                  And “Printed matter** offers utility….but…..

                  BOTH not within the Useful Arts.

                  So, using your favorite construction, you are wrong

                  Quite the opposite – thank you.

                  ** And I chuckle at your inclusion of this – ask Malcolm for the lessons that I B E A T him down with on the patent sense of that phrase. Better yet, take my lesson and discuss it with your current patent counsel. Let me know how that goes.

                1. As mere information (other than fitting into one of the exceptions to the Printed Matter Doctrine), you are STILL in the weeds.

                  Statutory basis is the same: the Useful Arts.

                  Come now marty – let’s not pretend that I have not given answers to your questions already.

                  By the by – have you had that discussion with your patent counsel on the Printed Matter Doctrine (and its exceptions)? Let me know how that goes for you.

            2. 7.4.2.1.1.2

              I don’t Martin.

              What does that mean the utility in the human mind?

              Let’s suppose that an interface enables a human to select three choices each of which cause a corresponding door to open.

              Is the utility of the interface in the human mind? The interface is typical controls that enable interaction with the machine or another machine.

              I get that the utility gets a little more tricky to talk about if it is information that is then used in something else by the human.

                1. Martin is describing what he thinks that the law should be, not what it is. I think that he would be the first to agree that his theory of 101 does not explain the actual results of actual cases. Rather, he is describing what he believes to be the rule that should govern 101 disputes (IMMV).

              1. 7.4.2.1.1.2.2

                Because the utility arises from the door opening, the subject of the patent, i.e. the useful result of the method, is the opening of a door.

                If the menu suggests which door a person might want to open, it’s a totally different form of utility.

                Greg, of course you are correct.

                1. What Greg — and marty — both leave out is that the view that marty WANTS the law to be is divorced from the terrain of patent law.

                  Sure, he WANTS.

                  So what?

                2. Greg I do apply the concept to the historical eligibility cases here

                  link to papers.ssrn.com

                  The “Printed Matter Doctrine” has no statutory basis, and as common law its built on the same quicksand as the judicial exceptions; essentially just normative views of knowing it when they see it.

                  Meanwhile, my test easily accommodates printed matter without Ru be Goldberg variations of substrates and functions.

                  Naturally the terrain here is not patent law at all. It’s politics, because this is a political problem. And I’m not just fighting for it on blog posts. So whose views matter is the same as always- the people who move the needle, this way, or that way. I have all the time in the world, until I don’t.

                  Also I haven’t had patent counsel for years because I haven’t been involved in any litigation. Hopefully it stays that way.

                3. Naturally the terrain here is not patent law at all

                  Because understanding the fundamentals of patent is “not patent law at all”

                  And thus, marty cannot get out of his own way.

                  Also I haven’t had patent counsel for years because I haven’t been involved in any litigation. Hopefully it stays that way.

                  ??? Just the other day you mentioned that you and your brother are prosecuting some patent applications. Patent Counsel INCLUDES (and more correctly ONLY includes) such, as litigation counsel may (and importantly may NOT) be genuine patent counsel (that is, an attorney with proper USPTO registration).

                  marty – would love to see you say that to your current patent counsel and see what they would honestly tell you.

                  You are deeper in the weeds than I previously thought.

                4. This is not a particularly important question, Martin, but researching some old case law, I discovered that the U.S. used to have a rule that one could get a patent on a drug or medical device, but not on a method of treatment. See, e.g., Ex Parte Brinkerhoff, 24 Commr. Dec. 349 (1883).

                  If your contention is that only method claims pose a problem for “abstractions,” then instead of advocating your “data for machines vs data for people” rule, why not just advocate to limit the “process” category to “processes for the physical transformation of matter”? Then people who invent data processing inventions related to machines could simply claim the machine, instead of the process (just as Brinkerhoff was free to claim his speculum, but not a method of using the speculum).

  4. 6

    Just weird that people don’t realize that if you are providing a service through the internet to people in a location that yes they should be able to sue you where you are providing the service.

    Remember that Netflix could not provide that service to those people if they don’t want to be sued there.

    Plus, there is a reality of actual hardware that is actually being placed near people to provide that service. Again we get this weirdness where people don’t get that information processing is a physical process. Netflix is putting physical objects there to provide a service. Those physical objects consume space and energy.

    And please. Prost, Taranto, and Laurie? The three all need to be removed. They are judicial activists that have no understanding of information processing and have no desire to build a consistent body of law to administer patent law.

    1. 6.1

      Just absurd the view that somehow information processing is not a physical process.

      Just replace the idiotic comments below with they just have a steel mill in their district. That shouldn’t count.

      Information processing is a physical process. Netflix is putting servers in the district to service the people of the district. Physical objects that take space and energy. Yes Netflix is using others’ services. So what? That shouldn’t matter. It is like saying it doesn’t count because you sublease a steel mill but the steel mill actually owned by another company.

      Think of information processing as a physical process, which it is, and all your ridiculous thinking will disappear.

    2. 6.2

      Just absurd the view that somehow information processing is not a physical process.

      Just replace the comments below with they just have a steel mill in their district. And imagine an argument that a steel mill shouldn’t count.

      Information processing is a physical process. Netflix is putting servers in the district to service the people of the district. Physical objects that take space and energy. Yes Netflix is using others’ services. So what? That shouldn’t matter. It is like saying it doesn’t count because you sublease a steel mill.

      Think of information processing as a physical process, which it is, and all your incorrect thinking will disappear.

      1. 6.2.1

        The CAFC did not decide that venue was improper in the ED Tex. The CAFC merely decided that the convenience of the parties was best served by moving the case to ND Cal, as 28 U.S.C. §1404 requires under applicable 5th Circuit interpretation of that statute.

        Nothing about this decision implies that data processing is not a physical phenomenon. It is simply an accurate recognition of where the witnesses and evidence are located.

        1. 6.2.1.1

          Greg, are you daring to suggest that the only thing relevant in EDTX, a partially rented file server, cannot be subpoenaed, deposed and cross-examined like a person? [Attempted humor while snowed in.]

        2. 6.2.1.2

          Worth emphasizing:

          as 28 U.S.C. §1404 requires under applicable 5th Circuit interpretation of that statute.

          As the 5th Circuit has not taken any disciplinary action, it should be clear what the 5th Circuit thinks.

          But the CAFC cannot be bothered with that, now can they?

        3. 6.2.1.3

          So for convenience we only consider in-person interactions but for the delivery of the product that Netflix offers we only consider Internet considerations.

          1. 6.2.1.3.1

            What difference does “delivery of the product” or not* to one rural district make in any patent suit?

            1. 6.2.1.3.1.1

              Notwithstandign Greg’s fallacious attempt to dismiss the notion that one who chooses to take a benefit — even in that one rural district — should not so easily evade ALSO taking the flip side of that coin of their choice, and the risk — even in that one rural district; consider that a patent is NOT a ‘local’ right, but is instead a Federal one and SHOULD APPLY through out. Greg wants to distinguish on a point of convenience (while ALSO – conveniently – omitting the permissive nature of the law AS IT IS; as well as look the other way when what is happening is that the CAFC is substituting ITS choice for the choice of the district.

              As I note, the 5th Circuit is free to admonish any its judges with its district, and the fact that it has not should indicate that what is going on there is in accord with its view of the law AS IT IS.

              1. 6.2.1.3.1.1.1

                this is gibberish. The Fifth Circuit does not have appellate jurisdiction in patent cases; rather, the Federal Circuit has exclusive jurisdiction of such appeals. The fact that the Fed Cir uses 5th Circuit venue law in no way gives the 5th Circuit the right to do anything (much less a right to “admonish” any judges for patent rulings). If this was civil procedure class you would be flunking out.

                1. The fact that the Supreme Court of Brazil has not admonished Judge Albright demonstrates that everything is copacetic. Meanwhile, no conclusions should be drawn from the failure of the CA5 to admonish the CAFC.

      2. 6.2.2

        Unless patent claims directed to information processing recite a physical process, what is your point?

        1. 6.2.2.1

          Given your (purposeful) obtuseness above, what is a non-physical information processing process?

          1. 6.2.2.1.1

            Why are you changing the topic? I’m talking about claims, which are comprised of words. Have you ever seen a patent?

          2. 6.2.2.1.2

            Please show me the physical process portion of a claim directed to adding two numbers together.

    3. 6.3

      It certainly is a business choice to make money at the end location, and one entirely within the power of the provider to make.

      But that little factor won’t make it on to Greg’s list for consideration.

    4. 6.4

      “Just weird that people don’t realize that if you are providing a service through the internet to people in a location that yes they should be able to sue you where you are providing the service.”

      I think it’s weird you don’t realize this is an value judgement rather than a fact.

        1. 6.4.1.1

          Well I am curious as to what “values” Ben has in mind.

          Me, I like the value of having responsibility for your choices, and if you choose to take benefit of business IN an area, then you accept the responsibility (and risk) of being sued in that area.

          Don’t want the risk? Don’t take the benefit.

          What value is Ben using in his “judgement?”

        2. 6.4.1.2

          Apparently, Night Writer, Ben is neither up to the task of disruption, nor the task of engaging in a dialogue.

          Pity. It would be nice to see him explicate his values.

  5. 5

    What’s “anachronistic” in 2022 is allowing 20 year long patents on abstractions like logic and instructions for logic-processing machines.

    1. 5.1

      Hi Malcolm,

      Are you retreading that stale script that somehow one form of innovation does not deserve innovation protection?

      Please – feel free to NOT USE the innovation that you would so deign to not protect.

  6. 4

    For those interested in such details, Lourie, Prost, & Taranto were on the motions panel. The order was per curiam.

  7. 3

    The decision states that: “It is undisputed that Netflix does not own or lease any offices in the Eastern District. CA’s complaint premised venue over Netflix in CA’s chosen forum based on the location of servers installed at internet service providers (ISPs) under contracts with Netflix that are part of Netflix’s “Open Connect” content delivery network allowing local delivery of content to Netflix customers.”
    If that was really such a tenuous venue connection why didn’t they sue in WDTX instead of EDTX, and why was this mandamus transfer for inconvenient forum rather than absence of statutory patent suit venue?

    1. 3.1

      [W]hy was this mandamus transfer for inconvenient forum rather than absence of statutory patent suit venue?

      The mandamus petition asked for both dismissal for improper venue and transfer of venue as an alternative. The CAFC granted the transfer but declined to address the dismissal petition.

  8. 2

    WD Tex practice has set a number of precedents, but now that those precedents are on the books, they apply to ED Tex with equal force. I guess we will see who ends up with the higher career total mandamus transfers.

  9. 1

    “Netflix itself does not have a place of business in EDTex, the district court found that its intimate relationship with ISPs to provide local content delivery was sufficient.”

    That is quite possibly the dumbest thing I’ve read in a while. Internet exists, therefore jurisdiction rules don’t matter? An extension of this is anyone can sue anyone from anywhere, which is precisely the scenario we have rules to avoid!

    1. 1.2

      Internet exists, therefore… anyone can sue anyone from anywhere…

      I share your contempt for this line of thinking. Nevertheless, there is definitely a segment of the patent bar and the plaintiff’s bar that believes that this should be the law, and are content to pretend that it is up until the moment in which they get their hands smacked.

      Meanwhile, the ED & WD Tex have decided that there is an upside in giving this segment what it wants. They are working diligently (if not quite successfully) to make “anyone can sue from anywhere” the slantwise “law” of those jurisdictions. They do not appear notably chastened or slowed by the spate of mandamus orders that have followed in the last year.

        1. 1.2.1.1

          Two brief responses:

          (1) I can see the logic of the charge of “anachronism,” but I am not totally convinced. Even in a world of high speed internet, Egnyte, & Zoom, physical proximity and time zones still matter.

          (2) If the rules really are anachronistic, then that is a matter for Congress to address. Unless and until Congress chooses to do so, then the CAFC’s duty is to ensure uniformity by obliging the various district courts to abide by the rules currently in place (“anachronistic” or not).

          1. 1.2.1.1.1

            On (2) though, the elements in the actual statutory text are fairly generic and open-ended. Courts, not Congress, have been the ones who fleshed out the more specific factor-based inquiry in the course of adjudication. So one could argue that, if the detailed inquiry has become outdated over time, the courts easily could—and maybe should—revamp it without prompting from Congress. Of course, one also could argue that Congress has acquiesced in the court-developed standard for so long that it’s essentially on a par with the statute itself. So any further modification should come from Congress.

            1. 1.2.1.1.1.1

              Congress has acquiesced in the court-developed standard for so long that it’s essentially on a par with the statute itself.

              A) The above is correct (statutory stare decisis).

              B) If it is for the Art. III branch to make adjustments, it is for the Supreme Court. Unless and until they take cert. on one of these cases, the CAFC’s duty is to keep applying the precedents of the relevant regional circuit.

              1. 1.2.1.1.1.1.1

                the CAFC’s duty is to keep applying the precedents of the relevant regional circuit.

                That’s not how the hierarchy of courts works – certainly not at least in matters of patent law.

                1. … AND for those matters to which such hierarchy DOES work – is this one in which the CAFC is being applauded for the very thing that you seem to be taking umbrage with?

          2. 1.2.1.1.2

            Even in a world of high speed internet, Egnyte, & Zoom, physical proximity and time zones still matter.
            Still matter in what sense? I communicate with inventors halfway around the world just as conveniently as I would if they were 50 miles away. In fact, if they were 50 miles away, I might be forced to meet with them, which will kill 3 hours (round trip) of my time. Moreover, if they block off 90 minutes of time, we’ll probably be forced to use it — even if I really only need them for 10 minutes. Consequently, it is more convenient for them to be really far away.

            In the legal business, there is no NEED to be in close proximity — either timewise or by distance. This is all thanks to technology that is supposedly nothing more than an abstract idea.

            then the CAFC’s duty is to ensure uniformity by obliging the various district courts to abide by the rules currently in place
            Which involves giving great deference to the findings of the district court. However, as is readily apparent to those paying attention, the likes of Prost et al. only give deference to the District Court when they are making findings adverse to patent holders.

            1. 1.2.1.1.2.1

              I agree WT.

              Also, just weird that people don’t realize that if you are providing a service through the internet to people in a location that yes they should be able to sue you where you are providing the service.

              Remember that Netflix could not provide that service to those people if they don’t want to be sued there.

              Plus, there is a reality of actual hardware that is actually being placed near people to provide that service. Again we get this weirdness where people don’t get that information processing is a physical process. Netflix is putting physical objects there to provide a service. Those physical objects consume space and energy.

            2. 1.2.1.1.2.2

              This is all thanks to technology that is supposedly nothing more than an abstract idea.

              Touche and and see post 5.1 above.

            3. 1.2.1.1.2.3

              [P]hysical proximity and time zones still matter.

              Still matter in what sense?… In the legal business, there is no NEED to be in close proximity — either timewise or by distance.

              I have reiterated my argument a dozen times by now, and you have reiterated yours a dozen as well. Neither of us convinces the other, because this is really a question of preferences rather than apodictic deduction. Neither of us can prove to the other that he is wrong, because there is no “right” answer to this question. The best that one can achieve on such a question is to satisfy the preference of the majority, rather than arrive at the “right” answer.

              With that in mind, what we really need is an authoritative consideration of the matter from a higher authority. Either Congress or the Supreme Court has the power to adjust the balance of conveniences here, if a rebalancing is considered necessary. With all of the mandamus orders recently granted, there are sure to be many cert. petitions. Let us hope that the SCOTUS takes at least one. Then we can get a settlement on this question for at least another decade.

              1. 1.2.1.1.2.3.1

                Or the 5th Circuit (oops, you forgot that).

                That being said, you are in simple error with the “majority” aspect, seeing as our legal system is set up to avoid the “tyranny of the majority” that any type of “we five wolves outnumber you three sheep, and we just voted what’s for dinner” scenario.

        2. 1.2.1.2

          Greg D. makes the obvious point that the current venue laws are the current laws.

          What should replace them, though? Nothing? Personal jurisdiction alone? I assume that the “anachronistic” comment means that the venue laws were enacted out of a concern for defendants’ travel costs to attend court proceedings and gather evidence, and that physical geography within the US isn’t the same inconvenience in 2022 that it was decades ago. That’s probably true at least for massive massive transnational defendants, but not necessarily true for all defendants.

          And do you think it’s wrong to use the venue laws to do more than personal jurisdiction to limit forum shopping? This blog often points out that venue-transfer motions are often seemingly filed because the defendant thinks it’ll get a better outcome in a different court, and not for any reason directly related to the factors caselaw makes relevant to a 1404 transfer motion.

          I don’t disagree, but there’s something unseemly about the current state of affairs. Wikipedia says there are 677 district judgeships in the country. If two of those judges hear the majority of all patent litigation only because those are the two judges patent plaintiffs prefer–and seemingly not for any other reason–that seems like it should be a problem.

          1. 1.2.1.2.1

            * the majority of my comment is addressed to Dennis’s “anachronistic” comment. After posting, I realized it may look like it’s 100% responding to Greg D.

          2. 1.2.1.2.2

            only because those are the two judges patent plaintiffs prefer–and seemingly not for any other reason–that seems like it should be a problem.

            I tend to agree – the problem is the excessively rampant anti-patent judicial tones that strike such a sharp contrast with your identified “two**”

            ** Keeping in mind that — I think that it was Wandering through — that labeling this as “only two” is false and that there happens to be a spectrum of those judges actually willing to give innovation protection its due, and that if these two are constrained, then there will merely be a shift to the “next two.”

          3. 1.2.1.2.3

            If two of those judges hear the majority of all patent litigation only because those are the two judges patent plaintiffs prefer–and seemingly not for any other reason–that seems like it should be a problem

            It’s clearly not a problem until people start lacing up their ice-skates in Waco.

            But Roberts is not a big winter-sports fan, so he seems to be ahead of the curve.

            1. 1.2.1.2.3.1

              But Roberts is not a big winter-sports fan, so he seems to be ahead of the curve.
              You should re-read what Roberts wrote and contemplate what he didn’t write. Notably, Roberts didn’t make any judgment as to what is going on in the WDTex.

              As I have pointed out in the past, there will always be a district court deemed most patent-holder friendly. Since patent-holders institute the vast majority of patent-related suits, there will always be a push to find a way into those courts. This will continue to happen even if the WDTex and EDTex cease to exist.

              The point I have made, which none of the usual suspects seem to want to address is that these large corporations, which want to do business in every state/venue, don’t want to get sued in every venue/state. Where is the fairness there?

              1. 1.2.1.2.3.1.1

                [T]hese large corporations, which want to do business in every state/venue, don’t want to get sued in every venue/state. Where is the fairness there?

                Where is the lack of fairness? I just do not see that considerations of “fairness” enter into the transfer of venue analysis. It is neither more fair nor less fair if the trial happens in Indiana than in Maine.

              2. 1.2.1.2.3.1.2

                So why not support a special carve out that large companies can be sued wherever their products are consumed?

                The Rs would be happy to get a chance to spit in the face of big tech, and the Ds don’t want to be seen catering to big business. It seems politically possible.

                1. The Rs would be happy to get a chance to spit in the face of big tech, and the Ds don’t want to be seen catering to big business. It seems politically possible.

                  I do not happen to favor this change, but I will say that the world would be a happier place if more people took this attitude. “Let us make the politically possible improvements, instead of letting the perfect be the enemy of the better” is a very healthy point of view, but increasingly rare.

                2. That is what 28 USC 1391 already does. That is the general venue statute; thereunder, if the defendant is a corporation then venue is proper in ANY district where there is personal jurisdiction. 28 USC 1400 is the special statute just for patent cases; having personal jurisdiction is not sufficient for venue in a patent case. What you propose is effectively repealing section 1400. There would be precisely zero chance of that happening.

                3. What you propose is effectively repealing section 1400.

                  No, because Ben’s proposal would apply to only “large” (>500 employees?) “tech” (“does business in >60% of US judicial districts”?) companies. It would not be a repeal of §1400, but rather a special category within §1400.

                4. Substantive patent rights should not depend on the size of the owner of the patent rights.

                  Any such encroachment will not end well, and would be against the spirit of those who started this country and the Grand Experiment of its innovation protection.

          4. 1.2.1.2.4

            [T]he venue laws were enacted out of a concern for defendants’ travel costs to attend court proceedings and gather evidence, and that physical geography within the US isn’t the same inconvenience in 2022 that it was decades ago. That’s probably true at least for massive massive transnational defendants, but not necessarily true for all defendants.

            Even for massive defendants, it is not really true. Sure, Google can afford to fly its employees to Waco if necessary, but reimbursing the Google employee’s airfare does not solve how the employee’s kids will get to and from school during the sojourn in Waco, or who will feed the pets, or drop in on the early Alzheimer’s father to check on him.

            Nor does Zoom solve all of these problems. All of us on this board have no doubt encountered the difficulty of trying to schedule a call with any more than two parties involved, and how the complexity goes up 7-fold if those parties are spread through multiple time zones. Similarly, many of us have experienced the phenomenon where months of e-mail chains and teleconferences make no progress on negotiating a settlement, and then one afternoon you get the C-suite officers from both parties in a single conference room and the whole agreement gets hammered out in an afternoon.

            Physical proximity matters. Time zones matter. In our justice system, much of the logic of why the appellate courts are supposed to defer to district court fact-findings is because the district court is in a position to observe body language, much of which will be invisible over Zoom.

            I can believe that recalibration of the relative weights of the Gulf Oil factors are in order. I am unconvinced, however, that it would be sensible to adjust that recalibration to accord no consideration to the inconveniences wrought by situating trials at a serious geographical remove from the witnesses and physical evidence.

        3. 1.2.1.3

          Dennis must be one of those “living Constitution” guys? Interpreting a statute to mean what someone today things it SHOULD mean, rather than interpreting it according to what it meant when passing both houses of Congress and being signed by the President. I, for one, am not ready to let people like Judge Albright re-write laws like a King.

          1. 1.2.1.3.1

            Nice — except the accusation of rewriting laws misses the mark that these (current) Congressional laws best discretion on these choices and what you have is CAFC merely exchanging their choice for the district judge’s.

            If you want to rally against ign0r ing Congress, take a gander at the summary judgment decisions (plank borrowed from Wt).

          2. 1.2.1.3.2

            I, for one, am not ready to let people like Judge Albright re-write laws like a King.
            LOL. What laws are Albright rewriting? 28 USC 1404 is permissive — “a district court may transfer any civil action.”

            If you want to get on courts for rewriting laws you need to be pointing your finger at the Supreme Court and the Federal Circuit.

        4. 1.2.1.4

          The patent venue statute is logically based on the fact that BY FAR the largest patent litigation cost burden, document production burden, and witnesses and other evidence burden, is on the defendant company making or selling the product accused of infringement.

          1. 1.2.1.4.1

            I think that you just made that up.

            But I would be interested in seeing any such in the Congressional record.

            1. 1.2.1.4.1.1

              Read the briefs and opinions leading up to TC Heartland. Paul F. Morgan is spot on. There is a special venue statute just for patent litigation for a reason.

              1. 1.2.1.4.1.1.1

                As I noted – I would love to see the support, so thank you for the lead (but I do wonder: was that ex post facto reasoning in those briefs, or is there actual reference — to what I asked — the congressional record?)

              2. 1.2.1.4.1.1.2

                Please pardon potential rePeat (hit a filter):

                As I noted – I would love to see the support, so thank you for the lead (but I do wonder: was that ex p0st fact0 reasoning in those briefs, or is there actual reference — to what I asked — the congressional record?)

          2. 1.2.1.4.2

            It is worth remembering that the plaintiff bears the burden of persuasion in an infringement suit. That means that, at the time that venue motions are being decided, the defendant is presumed not liable for the alleged infringement. It seems rough to put that heavier burden of travel and transfer on the party who—at the time this is being decided—the court is obliged to regard as the innocent party.

            1. 1.2.1.4.2.1

              Even more worth remembering is that infringement is the ONLY issue burden that the patent owner has, out of dozens of possible issues in patent litigation, and it could be met by the testimony of single and easily obtainable witness.

              1. 1.2.1.4.2.1.1

                So… Paul’s counter to Greg “Sometimes I Use Dozens” DeLassus is that to the specific point of that burden, electronic presence is more than adequate….

                Hmmm

              2. 1.2.1.4.2.1.2

                To be fair, if the patentee seeks enhanced damages for willfulness, or attorney’s fees for unreasonable litigation conduct by the defendant, the patentee also bears the burden for those issues. Similarly, if the defendant asserts invalidity for obviousness, and the patentee responds by asserting commercial success, or unexpected results, (etc.), the patentee bears the burden of proving up those objective indicia.

              3. 1.2.1.4.2.1.3

                Nor does the patent owner, unlike the defendant, have a presumption to overcome AND a burden of “clear and convincing evidence.”

                1. The patentee definitely does have a presumption to overcome. All infringement suits begin with a presumption of non-infringement. The patentee has the burden of both production and persuasion to establish infringement.

                  It is true, however, that the patentee has no presumptions that must be carried with clear-&-convincing evidence. Preponderance of evidence is good enough for all of the burdens that the patentee must bear.

                2. Greg, infringement is just the normal civil case plaintiff’s burden, not the jury-impressive Statutory presumption of validity against defendants that must be overcome with the Sup. Ct. imposed additional burden of “clear and convincing evidence.”

                3. [I]nfringement is just the normal civil case plaintiff’s burden…

                  Sure, but that is still a presumption. “The word ‘presumption’ properly used refers only to a device for allocating the production burden.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981). Therefore, wherever you have a “burden,” you have—ipso facto—a “presumption.”

                4. That whole footnote 8 (my minor emphasis added in bold):

                  This evidentiary relationship between the presumption created by a prima facie case and the consequential burden of production placed on the defendant is a traditional feature of the common law. “The word presumption,’ properly used, refers only to a device for allocating the production burden.” F. James & G. Hazard, Civil Procedure § 7.9, p. 255 (2d ed.1977) (footnote omitted). See Fed.Rule Evid. 301. See generally 9 J. Wigmore, Evidence § 2491 (3d ed.1940). Cf. J. Maguire, Evidence, Common Sense and Common Law 185-186 (1947). Usually, assessing the burden of production helps the judge determine whether the litigants have created an issue of fact to be decided by the jury. In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.

                  HOWEVER – in the context OF THAT CASE, there was NO requirement of persuasion, and the “properly used” ONLY refers to the contours of THAT case.

                  Greg’s citation is a misstatement of law as he attempts to broaden the words of that case WELL beyond their limits.

                  For the whole scoop, venture to: http s://supreme.justia.com/cases/federal/us/450/248/

          3. 1.2.1.4.3

            the largest patent litigation cost burden, document production burden, and witnesses and other evidence burden, is on the defendant company making or selling the product accused of infringement
            Document production is done electronically. It doesn’t matter if the documents are in India or Indiana. Witnesses are easily deposed through zoon. As for “other evidence burden,” what exactly is that and how much of it is a burden relative to every other burden that is placed upon a company during litigation?

            Regardless, if I’m reading this correctly, you think that because the defendant is the one having the greatest burden during litigation, they get to greatest say in the particular venue in which the suit is being tried. On the other hand, the party that is alleging harm (i.e., the patent holder) gets the short end of the stick.

            Sounds fair to me /s

            1. 1.2.1.4.3.1

              [Y]ou think that because the defendant is the one having the greatest burden during litigation, they get to greatest say in the particular venue in which the suit is being tried.

              I do not want to put words in Mr Morgan’s mouth, but I would be happy to defend that thesis. The statute says “for the convenience of the parties and witnesses… .” Insofar as the defendant’s witnesses are the ones being most inconvenienced, it is only proper under the standards that Congress has articulated that the defendant’s suggestions on venue carry more weight.

              On the other hand, the party that is alleging harm (i.e., the patent holder) gets the short end of the stick.

              Cry me a river. The patentee is alleging harm. We both know that plaintiffs successfully prove a legally cognizable harm much less often than plaintiffs allege such harm. To be sure, if the plaintiffs have a real grievance, it seems an injustice to deny them their chosen venue. On the other hand, if the plaintiffs “seek not simply justice but perhaps justice blended with some harassment…” and “forc[e] the trial at a most inconvenient place for an adversary…,” then it would be an injustice not to move the venue.

              At the time that the judge is deciding venue transfer motions (i.e., at a point when the plaintiff has merely pled allegations, but before the plaintiff has adduced any actual evidence), the judge cannot know whether the plaintiff is legitimately aggrieved, or is merely trying to extract a nuisance settlement by dragooning the defendant into an inconvenient forum. Therefore, it is largely pointless to pluck at this string of your guitar when arguing why forum non conveniens should not apply to this or that case.

          4. 1.2.1.4.4

            The patent venue statute is logically based on the fact that… the largest patent litigation cost burden… is on the defendant company…

            It is worth dwelling on this point a bit to unpack the logic of Congress’ thinking here. First, it is worth noting that venue exists as a statutory consideration separate from personal jurisdiction. Personal jurisdiction exists as a matter of federal constitutional law, and as a matter of various state statutes, but federal statutory law has very little to say about personal jurisdiction. If, therefore, Congress wanted the venue analyses and the personal jurisdiction analyses to collapse into one, there would be no need for a venue statute. The very fact that there is any venue statute at all tells you that Congress had some other interest in mind than just the “fairness” of being sued in places where one makes and sells one’s “widgets.” Rather, venue is about the convenience of the witnesses (many of whom have no hand in the decisions leading up to infringement).

            The fact that Congress not only enacted a statute for deciding venue that is more limiting than mere personal jurisdiction, but then went on to craft a separate venue statute for patent litigation tells you that the considerations for deciding where patent litigation should proceed are really not reducible to just the “they did business here, so they should take the consequences” logic of the personal jurisdiction analysis.

            Maybe the law should be that venue considerations reduce to nothing more than the personal jurisdiction analysis. Maybe, in view of high speed internet, personal communication technology, and the like, there is no longer a need for a separate legal analysis of venue that goes beyond “they did business here.” Really, however, there can be no good faith argument that the law presently is like that. Therefore, one has to conclude that the folks who argue that the CAFC is getting it wrong on these cases are either (1) ignorant of the relevant law or (2) arguing in bad faith. The more times they fall back on “they did business here” after the points above have been explained to them, the more one has to conclude that it is bad faith and not innocent ignorance.

            1. 1.2.1.4.4.1

              Please Pardon Potential rePeat (filter)

              Given as you conveniently omit factors (and have expressed that you basically do not care and will not have your mind changed, you should look in the mirror for that (1) and (2) and see that perhaps BOTH fit you.

                1. A triple bonus for me with YOUR choices here.
                  – random old thread in which you were no part of.
                  – projection of your own state to me
                  – mindless use of ad hominem.

                  Thank$$$

                2. That’s your obsession with me? I’m the only reason you get paid to post?

                  You need to get a union.

                3. LOL – as NONE of your assertions have merit, it is quite evident that you are projecting yet again.

                  Thanks$$

                4. Thanks$$$. Again, what is your obsession with me, Snowflake? Are you projecting yet again? Why do they all call you a narcissist?

                5. More bonus for me with you attempting to HI jack my memes (and doing so p00rly)

                  But a genuine question for you (note how conversation works – even if you choose not to answer questions put to you):

                  Who is this ‘they’ that you are referring to?

    2. 1.3

      I’ve read in a while. Internet exists, therefore jurisdiction rules don’t matter?
      Because the internet exists, a company can be anywhere in the United States. Except … when it comes to being sued — they only want to be sued in their own home district (that is notoriously anti-patent).

      An extension of this is anyone can sue anyone from anywhere, which is precisely the scenario we have rules to avoid!
      No — a company that makes widgets in Kansas and then sells them solely from their Kansas store isn’t going to get sued in EDTex or WDTex. This is because the company isn’t everywhere.

      Internet-based companies want to be everywhere but don’t want the downside of being everywhere. Does this seem fair?

      The vast majority of Netflix content is delivered directly from local residential Internet Service Providers (ISPs).
      So internet companies game the system by having other companies “run” their servers. I don’t see the usual parties who complain about the system being abused call these companies out? It appears that the system is only being ‘gamed’ when patent owners do it.

      1. 1.3.1

        Bravo – all of these points have been on the record before (by the likes of both you and I).

        Funny though, how when the topic comes up (again), the ‘other side’ needs to be reminded (again).

        1. 1.3.1.1

          The system is only gamed when the other side does it — and the system is being gamed because the Federal Circuit is allowing it to happen.

          Apple closed it store in the EDTex to avoid being sued there — yet Apple products are surely available for sale throughout the EDTex.

          The venue laws were not written for the modern era when large companies have de facto presences in every state and the legal system is more than capable of operating without the physical presence of the parties or witnesses.

          1. 1.3.1.1.1

            The venue laws were not written for the modern era when large companies have de facto presences in every state and the legal system is more than capable of operating without the physical presence of the parties or witnesses.

            The venue laws have almost nothing to do with yesterday’s decision. The CAFC did not decide that venue was improper in ED Tex. The mandamus order directed a transfer under §1404, not a dismissal for improper venue.

            1. 1.3.1.1.1.1

              The mandamus order directed a transfer under §1404, not a dismissal for improper venue.
              I wrote “venue laws.” 28 USC 1404 refers to “Change of venue.” It is a venue law.

              1. 1.3.1.1.1.1.1

                Please Pardon Potential rePeat (filter)

                Greg
                Does
                Not
                Care.

                He has already stated that you will not change his mind, and has made it abundantly clear that he does not care about the choice of forum that the person seeking to have his grievance heard may make.

                After all, the Efficient Infringer mantra is all about efficiency for the infringer.

    3. 1.4

      The people that signed on to the big school (AHEMMM) teaching how to get rich It was called a University. It was online and live. It reached many. They were sued.
      So then can you sue an online or live Church Service? I think so. I’ll keep my personal thoughts to myself. Otherise the down under Summerfield might try to sue me from Australia, saying words similar to me being a disgusting human being. Why is that? Is it because of anon’s job descrition? The older I get and the more I am harrassed, and threatened, I’m finding my mindset on the same plane as Ron Jr.

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