Mandamus and the Battle Over Venue in Modern America

The United States Court of Appeals for the Federal Circuit (CAFC) has become enamored with the power of the writ of mandamus to correct what they do not like, and they do not like patent owners filing patent infringement actions in Texas. Or, perhaps it is more accurate to say that while they might not mind patent owners filing patent infringement actions in Texas, they expect federal district court judges in Texas to order those patent owners off to other courthouses outside of Texas upon the request of defendants.

Rather famously, Judge Alan Albright of the Western District of Texas has been the focus of numerous writs of mandamus issued by the Federal Circuit. The Federal Circuit disagrees with Judge Albright on venue, but to order the transfer of cases from Texas to other venues that are less friendly to patent owners – or even openly hostile to patent rights – the Federal Circuit must largely ignore the extraordinary nature of a writ of mandamus. Indeed, a writ of mandamus has become rather ordinary at the Federal Circuit, and the contagion has spread from contempt for Judge Albright to contempt for Judge Gilstrap. It seems the Federal Circuit is waging a campaign to eradicate as much patent litigation from Texas as possible.

What Happened to Deference?

The standard for a writ of mandamus is purposefully high and is not supposed to give the reviewing court license to substitute its own judgment for that of the district court. The Federal Circuit, like all appellate courts, is supposed to give substantial deference to the district court. But is that what is happening with respect to petitions for writ of mandamus relating to motions to transfer filed in the Eastern and Western Districts of Texas? It is hard read the Federal Circuit decisions and not come away with the conclusion that they simply disagree and would have decided differently if they had been the trial judge or were sitting as the trial judge by designation.

In one case, In Re: Juniper Networks, the Federal Circuit found that Judge Albright erred in his finding relating to the ability to compel potential witnesses to testify. Judge Albright’s ruling pointed to the fact that no evidence was presented suggesting that any witness would be required to be compelled to testify. Without evidence, how can any moving party prevail? Isn’t that basic Civil Procedure 101 or Evidence 101? Without evidence, this factor must favor the patent owner, at least if generations of procedural law relating to the plaintiff having the default right to pick the venue has any meaning and modern applicability.

Furthermore, why does the district court’s ability to compel witnesses matter if there is no reason to believe that power will need to be exercised? And without evidence there is simply nothing other than speculation over the likelihood that the district court may need to compel even a single witness. And speculation is not evidence; at best, it is attorney argumentation.

And why doesn’t the Federal Circuit consider actual convenience of parties and witnesses? After all, transferring venue from one courthouse to another courthouse is supposed to be, at its most fundamental base point, about what is convenient. So, why doesn’t the Federal Circuit consider Judge Albright’s practice of holding all hearings via Zoom and allowing attorneys, witnesses, and parties to participate from wherever they are without the need to travel, the most convenient option? Even the public is allowed to attend hearings in Judge Albright’s court via Zoom, so any of the Federal Circuit judges could show up at any time themselves if they wanted. Talk about convenience, and transparency.

Stuck in the Past

And to say, as they have in some rulings, that venue is appropriate only in Silicon Valley because that is where the software code resides on a server is the type of statement that makes knowledgeable, technology-sophisticated people question whether the Federal Circuit is competent. It is as if they have never heard of electronic discovery, or that they somehow think physical access to that stationary object is meaningful in an electronic age. Of course, such a naïve understanding of software and hardware would explain the insanity of the patent eligibility approach of the Federal Circuit, but that is a different story for a different day.

Like in so many areas of law, the Federal Circuit has jumped the shark with respect to venue. The court is not appropriately applying mandamus standards and the Circuit’s law on transfer is an archaic mishmash that simply has no relevance in a post-pandemic video-conferencing world where business, including trials, is increasingly conducted remotely.