by Dennis Crouch
Rafqa Star LLC v. Google LLC, No. 6:22-cv-01207-ADA, 2022 WL 3747666 (W.D. Tex. Aug. 17, 2022).
Google is one of the largest companies in the US with extensive ties not just to every state, but virtually every household in the entire country. Still, the company regularly argues that it would be too unfair and inconvenient to litigate patent cases in states such as Texas. In a recent decision, Judge Alan Albright (W.D.Tex.) denied Google’s motion to transfer venue. In his 40-page order, Judge Albright provided an in-depth analysis of the private and public interest factors that, based upon prior precedent, govern transfer under 28 U.S.C. § 1404(a). The relevant statute reads as follows:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.
Id. Before analyzing this case, I want to step back and recognize that the current legal test for patent venue transfer has departed significantly from the statutory language declaring the goals of convenience and justice. The public and private factor analysis mandated by current precedent does not actually focus on real inconvenience to parties or witnesses. For instance, the location of documents and witnesses gets weight when almost everything is cloud based. And the 100-mile rule makes little sense in an age of national air travel and remote work. This is especially true for patent cases that will have nationwide impact.
Moreover, these motions are never really about convenience in patent cases, but rather are tactics for judge shopping with the parties competing to reach a perceived more favorable forum. Like Google, the defendants are typically corporations with national reach who can – and do – litigate anywhere. But they believe certain districts or judges, like Judge Albright, are less favorable for them. Venue motions are weaponized as part of broader forum shopping, not for legitimate inconvenience reasons.
This underlying reality casts doubt on the entire enterprise of venue disputes in patent cases. The jurisprudence should be realigned to get back to the statutory standard and goals of convenience and justice. But until then, district courts and parties are stuck playing this game, as evidenced by the venue fight in Rafqa v. Google.
An interesting solution would be to require parties to certify that the public and private factors highlighted in their argument serve as the primary motivation for seeking a venue change, rather than an attempt to avoid a judge or forum perceived to be less favorable. W.D. Texas has also largely eliminated the Judge Albright singularity with its order requiring random distribution of patent cases filed in Waco.
As Judge Albright explained, Mr. Tan’s declaration ambiguously stated that Google employees “report to” offices in NDCA but did not declare that they actually reside there. Google’s lawyers then used this ambiguous phrasing claim that the employees were located in NDCA. Judge Albright also recounted inconsistent testimony Mr. Tan gave at an evidentiary hearing when pressed about his basis of knowledge for claiming employees were in NDCA. Mr. Tan was unable to give a persuasive basis. Based upon his in-person credibility determination, Judge Albright found Mr. Tan’s declaration and testimony unreliable and thus struck the statements about employee locations.
The order also explores apparent attempts by Google’s counsel to mislead the Court about the location of a Google employee in Texas. Counsel relied on a LinkedIn profile rather than investigating the employee’s actual location, leading to shifting stories.
These aspects of the case offer some important tactical considerations for the parties, especially when the fact-finder is a judge rather than a jury.
This case will almost certainly receive a mandamus petition to the Federal Circuit, and it will be interesting to see whether the appellate court once again rejects Judge Albright’s approach.
Rafqa’s asserted patent US11145215 claims a method of providing user feedback (such as directions) based upon inputs from a motion detector and video device.
It’s not even the outcome that Google doesn’t like about Waco. It’s that there will be an outcome. And that is not the case in CAND and other jurisdictions. It’s more convenient to not have to see a jury.
Not seeing a jury is an outcome, especially on the vortex of absolute non-sense cases that get filed in WD Tex.
Trolls love Albright because he doesn’t consider the merits at all: he doesn’t rule on motions to dismiss, he doesn’t rule on summary judgment motions, and don’t even get me started on claim construction. It’s a complete circus, and it makes East Texas look sane.
Thanks for the insight.
The statute says may transfer, not shall transfer.
Do the courts make any distinction in reviewing a decision to transfer vs. a decision to retain? It seems to me that transfering a case can be an abuse of discretion, but I don’t see how retaining a case can ever be unlawful if the statute is given it’s plain meaning. There is nothing that says a judge must transfer a case.
“There is nothing that says a judge must transfer a case.”
True Josh. But a four letter entity doesn’t give a d.a.m.n.: C.A.C.F.
When a statute suits their ends, they embrace it.
When it doesn’t, . . .
“they believe certain districts or judges, like Judge Albright, are less favorable for them”
It’s so ironic given that Waco Texas has long been a hotspot of incredibly innovative technology development, on par with Silicon Valley at its most creative.
Obtuse.
Is it deliberate?
(No one — and I do mean no one — has ever argued that a proper place to bring a (nationwide patent case is ONLY at the locale of the innovation.)
This really should be simple: an entity that wants to enjoy the benefits of its doing business (grabbing the money) in any place should also be willing to take on the risk of suit from those places that they choose to grab money from.
Moreover, these motions are never really about convenience in patent cases, but rather are tactics for judge shopping with the parties competing to reach a perceived more favorable forum. Like Google, the defendants are typically corporations with national reach who can – and do – litigate anywhere. But they believe certain districts or judges, like Judge Albright, are less favorable for them. Venue motions are weaponized as part of broader forum shopping, not for legitimate inconvenience reasons.
Bingo.
This is readily apparent to any reasonable outsider observer. However, the Federal Circuit continues to bend over backwards (and trample the law) to grant writs of mandamus to overturn these denials of transfer requests.
+1
+1
+1
First of all, we know this claim is total j u n k. And we know why this case was filed in Waco (hint: it’s not because the technology was invented in Waco because Waco is a d u m p for mentally challenged cow punchers and dominionist cranks, and because there is no invention in the first place).
Everything else is just a sideshow.
You do know that Baylor University is in Waco. Oh, right, it is Baptist, so automatically disqualified. It is ranked 77 in Best Colleges. Was chartered in 1845.
>the current legal test for patent venue transfer has departed significantly from the statutory language
Not the least of which being converting the “may” into a “must,” thereby amending the actual (patent specific) venue statute.
+1
(That is not a small change)
The current venue convenience factors are pretty much all based on a 1947 Supreme Court case about forum non conveniens case, Gulf Oil v. Gilbert. That test was then imported into 1404 case-law by the circuits. There is definitely a world in which the circuits could revisit their tests for 1404, particularly in light of technological change (not the Federal Circuit, though). But the reality is that those chances are so unlikely – outside of patent cases, transfer is an issue that is so rarely appealed. That’s why the Volkswagen case at the 5th Circuit got so much attention from patent attorneys.
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