by Dennis Crouch
In the recent case of In re Microsoft, 23-128 (Fed. Cir. 2023), the Federal Circuit once again granted a writ of mandamus, ordering a patent infringement case to be transferred out of Judge Albright’s courtroom in the Western District of Texas (WDTX). This decision was made under the provisions of 28 U.S.C. § 1404(a), which allows for the transfer of cases for the convenience of the parties and in the interest of justice.
Microsoft, a multinational corporation with a significant presence in many U.S. states, including Texas, is no stranger to litigation in the Lone Star state. The company’s substantial business activities in Texas, which include marketing, selling, and servicing the accused products, did not significantly impact the 1404(a) jurisprudence in this case.
In 2022, Virtru Corporation sued Microsoft for infringing three of its data privacy patents: US8589673, US8874902, and US9578021. Microsoft sought to transfer the case to the Western District of Washington (WDWA) under § 1404(a), citing its incorporation and headquarters in Washington, the location of the accused technology’s development, and the absence of relevant operations by either party in WDTX.
The Judge Albright denied the motion, concluding that while access to sources of proof and local interest slightly favored transfer, administrative difficulties due to court congestion disfavored it. The district court found 27 Microsoft employees in WDWA who were potential witnesses, but it deemed the willing witness factor neutral because Virtru had identified eight potential party witnesses more conveniently located near (but not in) WDTX.
In the § 1404(a) mandamus context, the appellate court reviews only for clear abuses of discretion that produce patently erroneous results. The decision of whether to transfer a case is committed to the district court’s discretion, but the district court should transfer when a movant demonstrates that the transferee forum is clearly more convenient.
The appellate panel concluded that Judge Albright’s denial of transfer was patently erroneous. It noted a clear abuse of discretion in the district court’s assessment of the convenience of potential witnesses. The appellate court concluded that the center of gravity of the action was clearly in the WDWA, where the majority of potential witnesses with relevant and material information resided, where accused product features were researched, designed, and developed, and where physical evidence was located. The court granted the petition, vacated the district court’s order denying transfer, and directed the district court to grant the transfer motion.
It’s disappointing that the CAFC can’t be bothered to identify the patent(s) being asserted. Two seconds to drop the serial numbers into a footnote.
This looks like it might be the one? Or something similar. This is evidently in the super duper techno “compare data to authenticate users” art field which is brand new to humanity and totally not something that’s been done forever. It’s done with COMPUTERS, folks! And some of the computers are, like, in different rooms and connected through electronic signals. Crazy stuff!
1. A method comprising:
receiving, by an access control management system, from a first client device, information associated with an encrypted data object, the information including an identification of a role assigned to a user authorized to access the encrypted data object;
receiving, by the access control management system, from a second client device, a request for the information associated with the encrypted data object;
verifying, by the access control management system, that a user of the second client device is identified in the received information associated with the encrypted data object;
verifying, by the access control management system, that the user of the second client device is assigned the role identified in the received information;
selecting, by the access control management system, an identity provider from a plurality of identity providers, based on a user identifier included in the request for the received information associated with the encrypted data object, the user identifier associated with the user of the second client device;
requesting, by the access control management system, from the selected identity provider, authentication of the user of the second client device; and
sending, by the access control management system, to the second client device, the received information associated with the encrypted data object, responsive to the authentication by the selected identity provider of the user of the second client device.
Docket appears to be here. link to dockets.justia.com
Asserted patents are listed at the bottom of the pages as the attachments to the complaint:
“Attachments: #1 Exhibit A-US 8,589,673, #2 Exhibit B – US 8,874,902, #3 Exhibit C – US 9,578,021”
No need to mention this information in a procedural ruling.
Agreed that it’s not “necessary” but certainly it’s helpful background for folks wondering what the dispute is about, and it takes minuscule effort for the clerk to drop the info into a footnote.
Dennis, Do you wonder why it would be convenient for a company based in Washington, D.C. to litigate a claim against a company based in Seattle, Washington, in Waco, Texas? Or do you acknowledge at least that this was just forum shopping and the defendant lost out?
+1
There certainly is forum shopping.
The mistake would be to think that only one side is engaged in forum shopping.
Do you wonder why it would be convenient for a company based in Washington, D.C. to litigate a claim against a company based in Seattle, Washington, in Waco, Texas?
Do you wonder why in 2023, after a pandemic and when the Courts routinely use/permit remote depositions/hearings as remote work is frequently engaged in within both the public and private sector, how the Federal Circuit is allowing large corporations to game the system to get cases transferred to their home forums?
The whole notion of forum non conveniens is a factual absurdity.
This is from Microsoft’s own website:
Over the last few years, Microsoft Digital has transformed Microsoft’s technical infrastructure and workplace culture, enabling employees to be their most creative and productive from anywhere in the world. Today, Microsoft is a secure, cloud-first enterprise. By providing direct access to our line-of-business apps through the cloud via Microsoft Azure, Microsoft 365, and Dynamics 365, we’ve maintained productivity levels while transitioning to work-from-home environments to meet stay-at-home guidelines.
We owe that success to a company-wide dedication to living life in the cloud, the tenants of the Zero Trust security model, and to the capabilities of Microsoft 365. Zero Trust helps us stay secure through strong user identity, device health verification, and least-privilege access. Microsoft 365 keeps us productive, together.
The whole notion that an employee that is forced to travel somehow suffers a great inconvenience is a joke in the modern world — particularly when invoked by tech-savvy companies such as Microsoft, Google, and the like.
The system is being gamed — you just don’t seem to realize who, in reality, are the experts in gaming the system.
>to get cases transferred to their home forums?
It’s also worth noticing that we have tremendous substantive variability in patent law nowadays. IIRC, NDCA grants 101 SJ’s at something like a 75% clip, WDTX at something like 15% (for context, DDE and EDVA are something like 25%). And that’s not even including the PTAB/Fed Cir split re 101 law.
TL;DR we’re back to the bad old days before the Fed. Cir. when civil procedure decided patent cases.
“ IIRC, NDCA grants 101 SJ’s at something like a 75% clip, WDTX at something like 15% ”
Oh my. It’s so confusing. What could possibly explain this? Probably just random. Like gun accidents.
Your cavalier chide absolutely misses the mark.
Chalk this up to your one-bucket mentality and your abject inability to see ANY fault in your side.
Next, you will be mouthing the anti-patent propaganda nonsense about “0h N0es, Tr011s!”
+1 to WT.
the headline of the blog post is misleading. The issue was not whether it was convenient to litigate “in Texas,” but rather whether it was more convenient to litigate in the WDWA than the WDTX. There is no federal court for the “district of Texas.” Also, if a witness in Texas is >100 from the court in Waco, then the judge doesn’t have the automatic authority to compel most such witnesses to attend trial.
I also quibble with the headline, but for a different reason. As I read the opinion, it was not that the appeals court considered that it would be inconvenient for a couple of major multinational corporations to litigate in Texas. Rather, the appeals court considered that it would be inconvenient for a couple dozen Washington-resident witnesses (including several non-party witnesses) to have to take part in Texas litigation. The appeals court is right about that point. It is misleading to make it sound like the corporations’ convenience was the major driver here, when in fact it was the witnesses’ convenience that really drove the outcome.
Both good points here. I’m not sure why it’s relevant that one of the parties is a big multinational, other than maybe Prof. C. has a chip on his shoulder against such entities? Even then, it’s not like PAEs/NPEs financed by massive hedge funds or other investment entities are unheard of either.
> maybe Prof. C. has a chip on his shoulder against such entities?
Ya think? But I assumed the headline was deliberately tongue-in-cheek. It felt like Dennis gave ChatGPT a prompt to write a headline “in the style of The Onion or The Babylon Bee.” He obviously didn’t use ChatGPT to write the main article given the typographical errors and the absolutely brutal grammar.
Yeah, I know, just chiming in for gits and shiggles anyway.
This being a blog and all, I don’t actually begrudge the inevitable errors, unless they amount to a clear abuse of spelling and grammar.
The issue was not whether it was convenient to litigate “in Texas,” but rather whether it was more convenient to litigate in the WDWA than the WDTX
No. The issue is whether Abuse of Discretion existed — which is a ridiculously-high standard to overcome. This standard of review has been improperly transformed by the Federal Circuit into a no deference standard of review, which has allowed the Federal Circuit to essentially review the facts anew.
+1
Yep.
WWAD
What Would Albright Do?
I’m not sure this sniping helps convince his reviewing Court, though:
“Although the Federal Cicuit’s determination that the patentee must be engaged [sic] products competition appears to be made of whole cloth, In re Google is binding precedent on this Court and the Court will therefore follow it.”
It is a moral obligation of a judge to state what the law is and to abide by precedent. That’s not sniping that’s honor and transparency.
It makes a big difference when individuals speak for truth and justice rather than keep silent.
+1
Stroud has shown some real anti-patent judicial activism tendencies.
You do know who he works for, right?
No, I don’t.
Jonathan Stroud
He is general counsel for Unified Patents (i.e., ‘we kill patents for you’) and is one of the chief advocates for destruction of the US patent system because that is the business model of his company.
Seriously, how could you not know who he was?
His positions make sense now.
Reyna is intellectually challenged.
“administrative difficulties due to court congestion disfavored it”
Which means what, exactly?
I think Albright’s position is his pad is more “streamlined” so it’s always “favored”.
I do not doubt that there is a sliver of “Justice delayed is Justice denied” that accompanies his more “I will hear both sides on patent issues” major position.
Of course, this falls out of the typical anti-patent narrative, as you no doubt are aware.
“Ahhh . . . yet when the destination is known, the paths are many.”
— Yoda . . . Scooby Doo . . . Kwai Chang Caine . . . and the CAFC
+1
Best comment of the week.
For some odd reason, this is not included in the write-UP:
Before PROST, REYNA, and STARK, Circuit Judges.
PER CURIAM.
Feel free to start your own blog or keep posting the panels in the comments.
It’s interesting to know who’s on the panel, but that information is one click away.
Dennis thinks that panel composition is irrelevant. He subscribes to the canard that the CAFC speaks with one voice.
That’s a joke. Get with the program, Dennis!
AM,
Maybe it’s because they genuinely care about each other and only (selflessly) want the commune’s best.
(/S)
It’s not abuse of discretion to try a case. This is absurd to grant a writ in this circumstance. Abuse of discretion occurs when a judge transfers a case out of laziness, rather than convenience of the parties. The statute says “may transfer”, not “may retain”.
The real problem is that it’s an abuse of discretion to have the temerity to allow patent law suits against Big Tech to impede….
sorry not “to impede” but to “proceed”
Chill out, Josh. Albright has been a stick in the mud about transferring cases for several years. And the word to describe him saying that he’s doing the WA court a favor by keeping the case out of that court’s hands is “hubris”.
It is well established that other courts are slower and less efficient, quick to stay cases and slow to try them. Is this not the case in WA? It’s definitely true in CAND?
Patently erroneous.
.. and “It noted a clear abuse of discretion in the district court’s assessment of the convenience of potential witnesses.”
It’s not like we just had an explosion of remote witness processing due to say a world-wide pandemic or anything….
Right. And everybody remembers that Texas (lol) was a real leader in Covid safety measures.
Your jest rather misses the point here about this “remote witness” thing is simply NOT the driver it may once have been.
(It also tends to your one-bucket approach, as certainly not all Texans fit your attempted denigration — but you be you)
“this ‘remote witness’ thing is simply NOT the driver it may once have been”
As long as people are being dragged to some Texas grbge dump because the judge is selling his courthouse to patent t r o l l s, it will continue to be a driver.
But go ahead and keep pouring hot sauce into your eyes.
Pull your head out — look at my very second post on this article and see the confirmation posts by Wt.
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