Who Escapes Texas? And Where Do They Go? Mandamus Petitioners and Transferee Courts in Patent Venue Disputes

By Paul R. Gugliuzza, Temple University Beasley School of Law; Jonas Anderson, American University Washington College of Law; and Jason Rantanen, University of Iowa College of Law. This is the second in a new series on venue transfer requests and mandamus at the Federal Circuit.

Litigants shouldn’t get to choose the judge who decides their case. To us, that seems like an uncontroversial proposition. The ability to “judge shop” is the primary reason patentees once flocked to the Marshall Division of the Eastern District of Texas to file their infringement suits and are now flocking to the Waco Division of the Western District of Texas, where they’re guaranteed to have their case assigned to Judge Alan Albright. Judge shopping, we’ve argued elsewhere, raises concerns about court bias and capture and can make litigation unnecessarily costly and inefficient.

Numerous scholars, members of Congress, and even the Chief Justice have raised concerns about judge shopping, with a particular eye toward patent cases. Likewise, the Federal Circuit has indicated skepticism about the rapid accumulation of patent suits in Waco. In the past two years, the court has used the extraordinary writ of mandamus to order over twenty patent cases filed in Waco to be transferred elsewhere under 28 U.S.C. § 1404(a), which permits transfer “[f]or the convenience of parties and witnesses, in the interest of justice.” (Over the same time period, the Federal Circuit granted only two § 1404(a) mandamus petitions arising from any other court, both from the Eastern District of Texas.)

Though we think the harms caused by a party being able to choose its own judge are clear and indisputable, there is a counternarrative. It goes something like this: the Federal Circuit is polluted with “anti-patent sentiment.” It is captured by the big tech companies that are the most frequent targets of infringement suits—Apple, Google, and the like. And the Federal Circuit is thwarting patentees (and innovation) by sending infringement cases away from patentees’ chosen courts in Texas to places that are friendlier to defendants, such as the Northern District of California.

Fortunately, data we have collected as part of our comprehensive empirical study of mandamus practice at the Federal Circuit can help us assess whether, when it comes to questions about patent venue, the Federal Circuit is really in the pocket of big tech.

First off, it is true that mandamus petitions seeking transfer from Texas to the Northern District of California are more likely to be granted than petitions seeking transfer to other districts. As the table below shows, from 2008 through 2021, the Federal Circuit granted 32.0% of mandamus petitions seeking to overturn a district court decision denying transfer from the Eastern District of Texas to the Northern District of California as compared to 25.6% of petitions seeking transfer from the Eastern District of Texas to any district besides the Northern District of California. Likewise, the Federal Circuit granted 63.2% of mandamus petitions seeking to overturn a district court decision denying transfer from the Western District of Texas to the Northern District of California as compared to 46.2% of petitions seeking transfer from the Western District of Texas to any district besides the Northern District of California.Overall, mandamus petitions seeking to overturn a district court decision denying transfer from either Texas district to the Northern District of California were granted 45.5% of the time, while petitions seeking transfer from either Texas district to any district besides the Northern District of California were granted only 30.8% of the time.

To be clear, this disparity in grant rates among transferee courts doesn’t establish that the Federal Circuit unduly favors Silicon Valley-based tech companies. Rather, it may be that cases filed against those companies in Texas present particularly strong cases for transfer given that the defendants’ offices, employees, documents, and R&D facilities tend to be located in California. Regardless, the data does make clear that a mandamus petition seeking transfer from Texas to the Northern District of California is nearly 40% more likely to be granted than a petition seeking transfer from Texas to any other district.

To better gauge big tech’s success at the Federal Circuit, we can also look at the grant rates for individual mandamus petitioners. We found these results, frankly, a little surprising. First of all, there are not as many repeat petitioners as one might think. In total, from 2008 through 2021, roughly 185 individual parties joined one or more petitions for a writ of mandamus seeking to overturn a decision by the Eastern or Western District of Texas denying transfer under § 1404(a). (For the purpose of this analysis, we combined obviously related corporate entities, such as Samsung Electronics and Samsung Electronics America. Also, because many petitions are joined by multiple parties, the total number of petitioners is much larger than the number of Federal Circuit decisions.)

The most frequent petitioner in our dataset is Apple, which filed 16 petitions over the 14 years covered by our study. The Federal Circuit granted 4 of those petitions. The most successful petitioner of note is Google, which prevailed on 4 of its 6 petitions. But those numbers are small, making it hard to draw definitive conclusions.

The table below shows the results of Federal Circuit mandamus decisions in which the Eastern or Western District of Texas denied transfer under § 1404(a), limited to petitioners who appeared in three or more decisions from 2008 through 2021.As indicated on the first table above, the overall grant rate for Federal Circuit mandamus petitions challenging denials of § 1404(a) transfer motions by the Eastern or Western District of Texas is 37.5%, so these frequent petitioners do about average. (Though of course the mandamus grant rates in cases out of the Eastern and Western Districts of Texas are much higher than in cases filed elsewhere.)

If we added the Federal Circuit’s mandamus decisions from 2022 (after we closed the dataset for our study at the end of 2021), the numbers would change somewhat. Apple is 2-0 this year, which ups its grant rate to 33.3%. Google also won its only petition in 2022, bumping its grant rate up even higher, to 71.4%. Samsung likewise is 1-0 this year, so its rate is now 50%. Still, we would hesitate to say that any of this establishes that the Federal Circuit is biased against patentees and in thrall to big tech.

To be sure, the world’s richest corporations, like Apple and Google, enjoy massive advantages any time they litigate; the notion that we have an impartial court system indifferent to litigants’ economic power is fanciful. But it’s also specious to claim that the Federal Circuit’s mandamus practice indicates court capture by big tech. More likely, the Federal Circuit is using the imperfect tools at its disposal to fix a real problem: the questionable incentives for both judges and litigants in a system where the party filing a case gets to choose its judge.

72 thoughts on “Who Escapes Texas? And Where Do They Go? Mandamus Petitioners and Transferee Courts in Patent Venue Disputes

  1. 9

    As the table below shows, from 2008 through 2021, the Federal Circuit granted 32.0% of mandamus petitions seeking to overturn a district court decision denying transfer from the Eastern District of Texas to the Northern District of California as compared to 25.6% of petitions seeking transfer from the Eastern District of Texas to any district besides the Northern District of California.
    Why pick 2008 to begin with? Let’s look at the last 3 years Maybe the last 5 years?

    But it’s also specious to claim that the Federal Circuit’s mandamus practice indicates court capture by big tech
    Now compare that data to how successful other companies are in mandamus practice in other Appellate Courts. You won’t find much data because the success rate is absolutely abysmal, and an absolutely abysmal success rate deters these types of petitions, which SHOULD be very rarely granted.

    This should be a word of warning to all “researchers.” When you ask the wrong questions, you get the wrong answers.

    1. 9.1

      Absolutely.

  2. 8

    So forum shopping has become judge shopping? Give it a new name so we can get a different result?

    1. 8.1

      Well, I saw “facebook” changed its name to “meta”. Give it a new name…..people forget b/c they’re interested mostly in their own vineyards.

      When re-defining, I’d use powerful words, those which evoke “emotion” in the recipient, and I’d try to maximize the number of those who hold the knobs of control, who are susceptible to concepts which invoke emotion. If they outnumber those who are logical thinkers, then ya’ve got ’em in yer grasp !!

      Live Long and Prosper, emotion is quite frankly…. illogical !

    2. 8.2

      > So forum shopping has become judge shopping?
      > Give it a new name so we can get a different result

      I’m assuming this was a serious question, so I’ll try to give you a serious and unbiased answer. Whether “forum shopping” is equated to “judge shopping” depends on the district.

      In most districts, when you file a civil action, you get randomly assigned to one of the judges in the district. The number of district judges varies by district, of course, with C.D. California having more than 25, Eastern Virginia having more than 10, Delaware having three or four (depending on current vacancies), the Western District of Wisconsin having two, and so forth. But for most districts in the United States where patent cases are commonly filed, a plaintiff can choose the forum by filing suit there there but they’re not guaranteed any particular judge. This is thus considered “forum shopping,” but strictly speaking, not “judge shopping.”

      Many districts take further steps to reduce a litigant’s control of judge assignment by randomly assigning patent civil cases on a district-wide basis; for example in N.D. Cal., if you file a patent case in the San Jose Division you may be randomly reassigned to a district judge in the Oakland or San Francisco Divisions. The judges in N.D. Cal. implemented district-wide assignment about two decades ago after they saw a disproportionate number of patent cases being filed in the San Jose Division (which was perceived as having more patent-experienced judges). In any case, district wide assignment eliminates a plaintiff’s ability to control even the probabilities of judicial assignment by filing in a particular division, and thus more evenly distributes patent cases across the district.

      But now let’s look at the Waco Division of the W.D. Texas, or the Marshall Division of E.D. Texas. In each these divisions, there is just one district judge, and those districts have not implemented district-wide random assignment of patent cases. So if you file a patent infringement action in W.D. Texas (Waco) or E.D. Texas (Marshall), you know exactly which judge you’re going to get. So when plaintiffs file in these districts, the argument goes, they’re more engaged in judge shopping than forum shopping. That’s presumably why the article equates filing in these districts to judge shopping.

      1. 8.2.1

        One solution might be, to hire a couple less-patent-savvy judges, have them sit in six-shooter junction (Waco), and then randomly assign them to cases, so that plaintiffs in the Baylor bailiwick can have just as poor (or good) chance, of being assigned a “good” judge.

      2. 8.2.2

        Thanks LR.

        At the same time, what is omitted from such discussions were the opposite intended circumstances of developing very specific judges with explicit patent expertise.

        I do note that the Federal program to do that was not renewed (this though does serve as a contrast that the program existed in the first instance).

        Agent Whewell seems closer on point: it appears that what is “wanted” is a better shot at a worse judge.

  3. 7

    When a person infringes a patent, are there situations in which an infringers’ actions can be construed as meeting the inducement element of a tortious interference claim re the patent-holder’s existing contractees ? If so, might it be possible to eliminate the federal courts, and go through the state courts instead ?
    Can a tortious interference theory be used to obviate the need to even step foot in a federal court ?

    1. 7.1

      Thank you Agent Whewell.

      Yes, a plaintiff can choose their battles and decide whether or not to enforce their patent rights.

      1. 7.1.1

        You’re welcome 🙂 Its not valid to generalize since each case is different, but I’ve seen some contracts that stood the test of time and rendered it a moot point to ever challenge a patent that’s subject of or to the agreement.

        With each change in procedure, interpretation etc we’ve seen as time passes, its as if a lid is being put on certain things, in general. But each time the lid is put on, the pressure builds until a little hole blows out the side of the kettle.

        Its one of the most fascinating topics, how to be creative and do things differently, hopefully better.

        quick Q: when (approx what year) ‘s the first time you ever heard of a 12b6 used in a patent case during initial pleadings which resulted in a dismissal ?

    2. 7.2

      definitely NOT. Patent law would pre-empt any attempt to convert infringement into some state law claim. The way you set up your hypo, the plaintiff would have to prove infringement of a patent claim as an element of its state law claim. That can never happen.

      1. 7.2.1

        But would they have to prove it ? Can a buyer in a supply contact be offered to acquiesce in writing that:

        “Smith Co. has consulted with Counsel and after diligent inquiry have concluded and agree, that the invention in patent # xyz is novel and non-obvious in view of the findings, agree there can never be any controviersies surroundingthe technology, and agree to never litigate xyz.”

        It wouldn’t work for all techs, and have to check out whether this should or should not constitute part of the agreement’s consideration. Attempting to find new ways to minimize the probability of litigation.
        This sort of thing is potentially an anti-trust minefield too. If I’m way off on this, I hope some of it was entertaining at least. 🙂

        1. 7.2.1.1

          There is no way to take a patent claim to state court, no matter how clever someone tries to get by calling it some other tort or otherwise “contracting around” patent law. It can’t happen. But indeed your ideas are entertaining and kudos to you for sparking a nice conversation. There should be more people like you here. Most of the repeat posters just rant and insult people.

          1. 7.2.1.1.1

            Thanks for that, -Gator 🙂 Yeah, I tossed it around about 22 yrs ago to a small group of super-skilled lawyers at a co., and the conclusion was the same then, about the state contract law angle. I wanted to just bring it up, b/c all the forum shopping talk which came up the past few years, I see it as one party being alleged at using forum shopping as an underhanded tactic (impliedly at least), but then those accusing the forum shoppers, want to inject their own bias on the venue, and certainly the one moving to change venue isn’t going to select some obscure district of no advantage. So, who gets to be the prevailing Biaser ? Politics is power ! Stay the fight, I still recall all the hard work Dana Rohrabacher did, some time ago. Victories. Then some losses.

            A European colleague mentioned a while back the word on the street was their system was set up to effectively drag things out over and over time, as a means to encourage parties to suits to settle amongst themselves. As in, if as defendant you beat an Opponent in an Opposition, they can still come back, and even after that, there are further proceedings possible. Maybe we’ve seen the US attempting to emulate that with the PTAB, IPR’s & cet. Its been a good mantra to keep in mind, look at what the Europeans were doing and imagine how that might come here, and be on that trajectory. Even in claim drafting.

            Well, thanks for entertaining the thoughts, have a good rest of the weekend. Its hotter than a wedding-night rotisserie in the SW, “heat dome”. later Litig8or…

      2. 7.2.2

        Patent law would pre-empt any attempt to convert infringement into some state law claim. The way you set up your hypo, the plaintiff would have to prove infringement of a patent claim as an element of its state law claim. That can never happen.

        I do not think that this is correct. After all, you have to prove infringement as an element of patent law malpractice (your damages are a function of the fact that the would-be defendant would have infringed your valid patent, but for the patent attorney’s malpractice). Gunn v. Minton, 568 U.S. 251, 264 (2013), nevertheless, makes clear that malpractice is definitely a matter for the state courts and is definitely not pre-empted by the federal nature of patent law.

        I think that Whewell’s tortious interference theory is not risible. All things considered, however, the tortious interference theory is not probably not as attractive as the straightforward federal infringement theory in most cases.

        The elements of tortious interference are: (1) the existence of a valid and enforceable contract between plaintiff and another; (2) defendant’s awareness of the contractual relationship; (3) defendant’s intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other caused by defendant’s wrongful conduct; and (5) damages. Audition Div. v. Better Business Bureau, 120 Ill. App.3d 254, 258 (1st Dist. 1983). I think that the incidences in which there is a contract in place between a patentee and a third party are much smaller than the incidences of infringement. The incidences where the plaintiff can show that the infringer knew about that contract are smaller still. After all that, the damages related *specifically to the breach* are not necessarily going to rise to the level of the reasonable royalty prescribed by 35 U.S.C. §284. In other words, in most cases you would be better off suing for infringement in federal court instead of common-law tortious interference in state court.

        For all that, however, there is no pre-emption obstacle to the state-court suit in view of Gunn v. Minton.

        1. 7.2.2.1

          I lean towards agreeing with Greg, and had taken the view that other non-patent courses of action were colorable in and of themselves, and not merely a sham for patent infringement.

      3. 7.2.3

        Forrester Envtl. Servs. v. Wheelabrator Techs., 715 F.3d 1329, 1331 (Fed.Cir.2013) held that there was no subject matter jurisdiction in federal court for a tortious interference cases where resolution of the relevance of a patent claim to the product sold would be necessary to the proper disposition of the case.

    3. 7.3

      When a person infringes a patent, are there situations in which an infringers’ actions can be construed as meeting the inducement element of a tortious interference claim re the patent-holder’s existing contractees ? If so,… [c]an a tortious interference theory be used to obviate the need to even step foot in a federal court ?

      I guess, but why would you want to. The state court is going to apply all of the same CAFC and SCOTUS precedents in analyzing the patent part of your suit. What would one hope to gain from all the rigamarole?

  4. 6

    What if plaintiffs are merely shopping for a venue that practices the 7th amendment? Does that change the analysis? Perhaps judges that try cases should be emulated rather than reprimanded. Why do litigants with deep pockets get the advantage aof avoiding trial?

    1. 6.1

      … because that’s efficient?

      (and yes: /s)

    2. 6.2

      Josh, WDTX Waco has actually conducted a smaller percentage of jury trials of its huge patent docket than a normal district. As previously noted on this blog, the main appeal of that one-judge district to plaintiffs is no stays for IPRs, no Alice type unpatentability motion grants, and early Markmans. Thus, more early cash settlements by defendants to avoid large discovery and trial expenses. [So, fewer final judgements appealable to the Fed. Cir. even though it has had a huge patent suit docket].

      1. 6.2.1

        The Efficient Infringer spin is strong in this one.

      2. 6.2.2

        Thus, more early cash settlements by defendants to avoid large judgments for damages.

        Fixed it. C’mon Paul. Trillion dollar corporations are not settling to avoid legal expenses. You are being disingenuous.

        1. 6.2.2.1

          If you had ever represented large companies you would know how litigation cost conscious most of them are, and that defendants in a patent suit do not win any money by winning a trial. So that if a pre-trial settlement can be had for less than all the plural million dollar discovery and litigation costs through trial and appeal, it makes no fiscal sense for most of them not to, even if they think they had an ultimately winning case. And more than roughly 90% of patent owners these days must not not want to go to trial either, or they would not accept pre-trial settlements at that high rate and would force trials instead to try to recover more money, as they have a right to if a defendant [typically] cannot get a summary judgment.

          1. 6.2.2.1.1

            O.k., you have represented large companies and Josh has not. Meanwhile, Josh has run a small company in a patent battle and you have not. I expect that you could both learn something from listening to the other.

            Is it not only possible, but even probable, that the relevant decision makers think differently about what costs they will bear and strategies they will employ when (1) it is one large plaintiff facing off against another large defendant; and when (2) it is a small plaintiff facing off against a large defendant? We have seen any number of large defendants in recent years take the position that they cannot merely settle with small, non-practicing plaintiffs, because they know that if they get a reputation for settling at the nuisance value, there will soon be a line down the block of other nuisance suit plaintiffs waiting to serve a complaint.

            1. 6.2.2.1.1.1

              Greg, yes, the fear of companies with major products getting a reputation for paying off small plaintiffs did get talked about a lot, and Newegg and some other companies were indeed aggressive about going to trial for awhile, but District Court settlement versus trial statistics irrefutably demonstrate overwhelming settlement practice.
              Also, if patents are owned and litigation-controlled by an individual inventor it can be difficult to have a rational settlement discussion about validity, infringement or damages issues, and go to trial for that reason if SJ or IPR cannot be obtained. Large companies asserting their employee-assigned patents are far more likely to engage in rational patent evaluations and licensing discussions, even before suing. [If their patents were not sold to PAEs.]

              1. 6.2.2.1.1.1.1

                Paul,

                Your problem is that you have no credibility, having been an Efficient Infringer cheerleader for so long. You may have some valid observations, but it is just not worth it to try to separate out any such from the spin that you engage in.

              2. 6.2.2.1.1.1.2

                District Court settlement versus trial statistics irrefutably demonstrate overwhelming settlement practice.

                I would be obliged if you could point me to where you find statistics that break down settlement vs trial propensity according to valuation of the entities (not damages at stake). I confess that I have not seen such statistics, but I would be interested to.

                1. Greg, not sure what you mean by valuations of “entities not damages,” but surely it it not in dispute that almost all actual patent suits are logically only brought against companies that are large enough to pay more in recoverable infringement damages than the cost of a patent suit. [I.e., excluding rare cases of patent suits, including personal “grudge” suits, brought against a small company to put it out of competition business with an injunction.]
                  BTW, some recent [if confusing] statistics presented to the AIPLA Patent Litigation Committee seem to suggest that defendants in WDTX Waco may be winning more than average numbers of SJs. Comments anyone?

                2. My apologies for the unclarity, Paul. I meant merely to ask where you are finding statistics that breakdown settlement vs. go-to-trial as a function of “big plaintiff suing big defendant” and “small plaintiff suing big defendant.” Thanks in advance.

    3. 6.3

      My read is any fed court that had Art. III jurisdiction previously, still does. It boils down to the status of the plaintiff, and past actions which make things clear to the court that Art. I applies for that particular plaintiff. Sometimes that plaintiff will attempt to invoke Art. III but such attempts are frivolous b/c of the previous actions of the plaintiff which defined their status.

      1. 6.3.1

        As absurd as that sounds, isn’t that really what the complainers want ? Instead of increasing the smarts in one jurisd., they’d rather decrease the quality elsewhere, so predictability in enforcement is equally questionable and uncertain, everywhere.

        1. 6.3.1.1

          You are on to something…

  5. 5

    Be interesting to dive a bit deeper and find out why Google and Apple were not as successful as the other large tech companies.

    Is it because of Apple Stores everywhere?

    1. 5.1

      I meant Amazon not Google. Is it because of Apple stores and Amazon delivery trucks and warehouses?

    2. 5.2

      Also, not sure I’ve really heard this:

      “It goes something like this: the Federal Circuit is polluted with ‘anti-patent sentiment.'”

      I think the narrative has gone more like “The W.D. of Texas is a rogue district that needs to follow our laws.” One gets the feeling that the motivation of the CAFC is more of not liking the fact that apparently a judge is not following their precedent.

      1. 5.2.1

        The main function of an appellate court is to reverse district courts that do not follow circuit precedent.

        1. 5.2.1.1

          Ok,

          Same question then as to Night Writer – which decisions in particular (on the merits of patent law) are being reversed?

          (Should I be nicer to you now that Malcolm has placed you and I in the same bucket? )

        2. 5.2.1.2

          Yes that is correct Litig8or.

      2. 5.2.2

        Which precedent is it that you think is sparking this action?

        I think it must be different.

        If it were indeed precedent, then the CAFC would (or could) rule directly.

        No.

        Instead this is directed at the FLOW of even hearing cases.

        This instead is directed to the notion that a particular court will not imbibe the Efficient Infringer narratives.

        1. 5.2.2.1

          Maybe anon. It is definitely a necessary condition of this problem that the patent laws are being so unevenly enforced. Scalia said that these giant balancing tests are not laws but just enable judges to implement whatever policy they like. In patent law that is all we have now for ever statute.

          The narrative from the anti-patent crowd where they set up strawmen and nonsense.

          But, honestly, anon, I suspect the biggest element of this is that the CAFC doesn’t feel their case law is being follow for venue. And I suspect even if the judge was a very anti-patent judge (I’ll invalidate any patent), that the CAFC would have the same reaction. Their desire for power is greater than their desire for dismantling the patent system.

          1. 5.2.2.1.1

            Hit a filter… (this repost is not recapturing the lost tagged emphasis)

            Your comment is awaiting moderation.

            June 18, 2022 at 10:38 am

            Thanks Night Writer – I hear your position, but must disagree, if not for some subtle grounds.

            Note how I asked about merits of patent law – and the absence thereof of actual decisions in defiance of the CAFC “power.”

            Venue is merely the weapon, rather than the aim.

            As the aim is not venue, those areas of the country that MAY have venue issues but otherwise are in accord with the underlying aim simply will not receive the notice of the CAFC, as concern about power is less concern about power of one weapon and more concern about power of what any weapon would be aimed AT.

            Look at the underlying tones of posts here from Greg and Paul (and elsewhere from Wt) – the underlying substantive patent positions are the aim. Efficient Infringers settle because those areas will give those substantive patent issues a fair hearing, and tend not to indulge in the Efficient Infringers choice of games.

            IF these fair hearings sans typical Efficient Infringer games were still likely to result in Efficient Infringer wins, venue would not even BE challenged.

            1. 5.2.2.1.1.1

              Still I think this is very fact intensive. I’d have to look at a few cases closely to be sure what is going on. This does not even go into why say Amazon had so few successes in transferring.

              1. 5.2.2.1.1.1.1

                Oh, I hear you Night Writer, and I am not saying that your view is WRONG (per se). Certainly, facts may vary and facts are important.

                I point though to the larger battle, much as it is the larger context that supplies the deeper understanding of the AIM to which the t001 of process flow is being used.

          2. 5.2.2.1.2

            I would add that the attacks against the Person of specific judges (by Congress, even Supreme Court justices, and the typical Efficient Infringer cheerleaders here) are NOT universally shared and that the ACTUAL efficiency is being emulated by the United States Court of Federal Claims – as noted by a recognized patent law expert Jurist on that Court: Judge Holt.

            An age-old adage applies: Follow the Money.

            1. 5.2.2.1.2.1

              There is no doubt that the anti-patent crowd is attacking the judge and would do pretty much anything to remove him.

              Maybe we will get lucky and Trump or DeSantis will get elected and they will appoint him to the CAFC.

              1. 5.2.2.1.2.1.1

                Trump?

                Not a chance.

                DeSantos?

                Now that would be interesting.

    3. 5.3

      The thing about the Apple petitions is—if you go back and look at them—even where the mandamus was denied, the CAFC still tended to agree with Apple and to warn Judge Albright to mind his Ps & Qs.

      For example, in the 9 Apr 2021 order for appeal no. 2021-135, the CAFC denied the mandamus, but noted that it was only doing so because Judge Albright had promised to rule on Apple’s transfer motion before the Markman hearing. The implication was that a renewed mandamus might well be more warmly received if Judge Albright did not attend to the transfer motion before any other items in the trial. Similarly, in the 4 Aug 2021 order for appeal no. 2021-147, the CAFC noted that Judge Albright’s “analysis was not free of error. Among other things, it improperly diminished the importance of the convenience of witnesses merely because they were employees of the parties.” Nevertheless, the CAFC concluded that “[e]ven under these circumstances, we cannot say that Apple has shown entitlement to this extraordinary relief.”

      I would say that really what explains Apple’s lower rate of success is its more aggressive use of the mandamus route. Mandamus is hard to win. Google reserved its use of this hard-to-win tool for only the most egregious of cases. Apple, meanwhile, petitioned on cases that were egregious, and on cases that were less so. Accordingly, Apple lost more often than Google.

      I expect that Amazon—buoyed in hope by seeing the success that others were having—over-reached itself in the same way that Apple did. In other words, I doubt that the relative success rate has much to do with Apple stores or Amazon warehouses. I think that this more likely reflects the aggressiveness with which different plaintiffs have attempted the mandamus route. Even where Apple’s petitions have been denied, however, Apple has still won the outcomes that it was aiming to achieve as often as not.

      1. 5.3.1

        The Fed. Cir. recently made the same complaint in a EDTX case about improperly delaying venue transfer motions. [Delaying any consideration until after Markman, discovery and/or other pre-trial case activities, and then using that as a bootstrap rationale not to transfer when finally considering the venue motion.] [I expect that to get district courts attention and go away?] [But doing Markman claim interpretations early, if thorough, can desirably reduce discovery and other litigation costs and increase early settlements or SJ.]

  6. 4

    Re: “..it is true that mandamus petitions seeking transfer from Texas to the Northern District of California are more likely to be granted than petitions seeking transfer to other districts.”
    Isn’t the simple logical rationale for that that these are primarily software or internet patent suits against large companies having their major activities, personnel, and/or headquarters in Silicon Valley, and little or no likely witnesses in West or East Texas?

    Re: Why pick the last 13 years rather than the last 3-5 years for this study?
    Isn’t that academic, since there were very few mandamus petitions granted by the Federal Circuit before all those recent one’s from WDTX Waco?

    1. 4.1

      To look at this from another perspective, is there any evidence that the Fed. Cir, would not grant venue transfer by mandamus in a patent suit filed in, say, North Dakota or Alaska, against the same Silicon Valley company products if the judge there had consistently refused venue transfer motions?

      1. 4.1.1

        To look at this from yet another perspective, in our system, the plaintiff traditionally gets to pick the forum (subject to personal jurisdiction, venue, and long arm statutes). IANA-litigator, but my impression is that “inconvenient forum” was traditionally considered a very exceptional thing.

        Put differently, is it more fair to let the *defendant* pick the forum vs. the *plaintiff* pick the forum?

        1. 4.1.1.1

          Fair question, but look which party Congress decided was the most “fair” party for picking patent suit forums in 28 U.S. Code § 1400(b): “Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”

          1. 4.1.1.1.1

            …. That last sentence has been eminently corrupted.

          2. 4.1.1.1.2

            ?? So…Congress said the plaintiff’s choice controls (“subject to personal jurisdiction, venue, and long arm statutes”)

            Not directed to you, but… there is also a bit of a false dichotomy in this thread i.e., we need to allow forum transfers or the plaintiff will get “to choose the judge who decides their case” (from the OP). There are, of course, a wide range of other options, including without limitation: 1) drawing judicial districts such that there are always multiple judges in them; 2) letting juries decide more issues vs. declaring them to be matters of law; 3) expanding the right to file a DJ action.

            1. 4.1.1.1.2.1

              I see it as the same murder of crows who coined the fantasy term: “Patent Troll”, as now their next move is to pump the notion that a Plaintiff is “choosing a judge”, when in fact it is merely forum shopping, done for a long time under traditional notions of substantial justice, etc. but now…… being “re-defined” as “selecting a judge”. Pure hokum. Don’t let ’em do it !

              Where a Plaintiff chooses to file, is evidence of “the voice of the market”, from an economics standpoint, choice of venue does not go to the “lowest quality” courts – instead, the Plaintiffs are teaching the “free market” of legal services, which venues are best. Its similar to how the market voiced favor for the BIC (TM) lighter vs. the CRICKET(TM) lighter, the latter having vanished due to features.

              The different district courts differentiate themselves, apparently, based on their features, whether its their local rules, or the prevailing zeitgeist of that court, or a combo.

              What the more preferred venues are teaching the less preferred venues, is…. how to become better courts, by emulating the more preferred courts.

              But it is not likely to work that way. The less-desirable venue (“LDV”) wants its will imposed on others – on all ! LDV seeks to commoditize courts, remove differentiating features which add value. It does not represent a free market, the LDV thru political power, seeks to eliminate legal choice. It is seen as redundant, from another reference frame.

              All is well, but for the abusers, that tiny minority who intentionally do “bad things” in any field (guns, drugs, speech, medicine, law) repercussions from which are placed on society as a whole for the actions of a eeency-weencie-sized minority, which sometimes can be just One person !

              The good lawyers on here and others have been picking at this for what, at least 6 years by now (whoa, way longer) most recently. Opinions are thick and informed, in a way its exciting albeit sooo drawn out, fascinating, observing the struggles for political power over whether the Merchant Law folk, will ever concede that there are advantages to keeping some of the best aspects of the American system. What does Dr. Klaus Schwab think about all this ? I think if one can convince him of their position, he’d be a good ally. Better be some good reasons…..

              If you let “them” re-define forum shopping as “judge selection”, I think everybody loses, because there can be no good faith in re-framing a topic that’s been exhausted, unless…. one wants to pound the lawyers and everybody else just through attrition, to accept the ways of Universal Commodization of …. everything…. including the Legal Profession. Just my $0.06 worth, which at one time only cost two-cents !

              Wasn’t directed to you Old Carmudgeon, just found it convenient to blab here. Its all a big struggle, all we get to choose are our goals 🙂 be well

              1. 4.1.1.1.2.1.1

                I chuckled (deeply) at your post – and might take exception to the Schwab “ally” point – but you pretty much nail it (by the by, your:

                same mur der of crows who coined the fantasy term: “Patent Tr011

                is also known as Efficient Infringers.

                1. Noooo, you have to convince Klaus, you definitely want him as an ally. If for no other reason, he’s experienced in roller derby when most others in his circle never skated like that !

                  “Efficient Infringers” is weak, you’ve coupled a positive with a negative and the string cancels itself. poof

                2. Thanks Agent – respectfully I will disagree with both here — Klaus has the Wrong kind of experience (while Dr. Lindsay does not discuss him directly, others in the field do – his (Klaus) is NOT the wagon that I want to hook my horse up to.

                  As to Efficient Infringement, there is a direct legal tie to Efficient Breach — tis a legal term of art that you may just not be aware of.

                  I did not create the term – and it very well fits.

            2. 4.1.1.1.2.2

              [O]ther options… includ[e]… drawing judicial districts such that there are always multiple judges in them…

              Right. That is the real solution to the problem here. I remember a previous article on this blog mentioned that only ~45% of judicial districts draw their division lines in such a way that one ends up with single-judge divisions. The real solution is simply for the SCOTUS to enact a rule that all divisions must have at least two judges in them. That way, the plaintiff can enjoy their proper right to choose the venue (subject to statutory limitations) without trespassing against the principle that no one should be allowed—unilaterally—to choose the judge in a case.

        2. 4.1.1.2

          The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself… The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, “vex,” “harass,” or “oppress” the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.

          Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947)

          1. 4.1.1.2.1

            >a court may resist imposition

            The Federal Circuit appears to have re-interpreted that “may” as “must.”

            1. 4.1.1.2.1.1

              Bingo — as Greg earlier mis-identified, the “control” here is NOT the CAFC, but instead should be the “law of the circuit.”

              This is also why “venue” is a thin veneer for results-driven practice of the ‘captured’ (but perhaps more accurately described as fire-hose-trained simians).

            2. 4.1.1.2.1.2

              The Federal Circuit appears to have re-interpreted that “may” as “must.”

              Your beef is not with the CAFC, but rather with the CA5 (whose precedent the CAFC is applying here). In re Volkswagen of America, 545 F.3d 304, 306 (5th Cir. 2008) held that “a writ of mandamus should issue directing the transfer of this case” when the court of appeals concludes that the district court has clearly erred in its assessment of the Gulf Oil factors. The CAFC is just doing what the CA5 has said that the court of appeals is supposed to do for a district court in Texas.

  7. 3

    Litigants shouldn’t get to choose the judge who decides their case. To us, that seems like an uncontroversial proposition.

    Intuitively, this seems uncontroversial to me (and the Chief Justice) as well. For better or worse, however, this proposition gets a lot of pushback around these parts.

  8. 2

    >As the table below shows, from 2008 through 2021
    ****
    >Still, we would hesitate to say that [the recent winning streak] establishes that the Federal Circuit is biased against patentees and in thrall to big tech.

    Why did you pick 2008 / 13 years? Do the percentages change if you zoom in on the last 3 or 5 years?

    1. 2.1

      It is a good question. I hope the authors answer it.

      1. 2.1.1

        At this point it is very doubtful that such will be addressed.

    2. 2.2

      Question to the same effect:

      Does it fit the desired narrative?

  9. 1

    All very interesting. Thanks for doing the work to find these numbers.

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