Texas judge must send patent case to California, circuit says

O'Melveny & Myers LLP partners scored a win Monday for their client, Hulu LLC, in the ongoing battle between defense attorneys seeking to transfer patent infringement cases out of Texas and an influential Waco federal judge.

The successful writ of mandamus by the California lawyers sought to transfer a lawsuit filed by a patent holding company, SITO Mobile R & D IP LLC, against the streaming service from the Western District of Texas to the Central District of California.

It is one of more than a dozen cases this year in which U.S. District Judge Alan D. Albright denied a defense motion to transfer a patent case but was challenged in the U.S. Court of Appeals for the Federal Circuit.

Albright, since he was confirmed in 2018 to the district court, has emerged as the most influential patent judge in the nation. He faced at least 27 appellate challenges in 2020 and this year by defense lawyers to his decisions to deny defense transfer motions.

Michael C. Smith, a Marshall, Texas based partner at Scheef & Stone LLP, said Albright cases accounted for half the writ petitions to the Federal Circuit last year and all of them this year.

"There are a lot of those [writs] being filed," Smith said in a telephone interview. He has won some and lost some appellate rulings, and Albright has changed some of his practices following some Federal Circuit decisions, said Smith, who is a member of the judge's patent rules advisory committee.

The reason for the quantity of challenges is simple. Albright is presiding over more patent infringement lawsuits than any other judge. By himself, he has heard more patent cases since the start of 2020 than the second-place venue, the District of Delaware. He now handles more than twice as many patent cases as the one time leader, the Eastern District of Texas, and has 23% of the nation's district court docket, according to data compiled by Lex Machina.

Defense lawyers would prefer to avoid Albright's courtroom because he, like many Texas federal judges, is disinclined to grant defense motions to dismiss and summary judgment motions.

In Monday's ruling, the Federal Circuit panel granted a motion filed by O'Melveny partner Brett J. Williamson of Newport Beach and Darin W. Snyder of San Francisco seeking the transfer.
Federal Circuit Judge Kara F. Stoll, an appointee of President Barack Obama, wrote for the panel that Albright abused his discretion in denying Hulu's motion and cited multiple errors. In re: Hulu LLC, 2021-142 (Fed. Cir., filed April 28, 2021).

"After correcting these errors by the district court, no factors remain that weigh against transfer and several weigh in favor," Stoll wrote. "Thus, we readily conclude that the district court clearly abused its discretion in denying Hulu's transfer."

Snyder declined to comment on the ruling.

In court papers, Williamson wrote that both companies' officers and relevant witnesses live in Southern California, with most residing in the Central District.

"Hulu developed the accused products in its headquarters in the Central District. SITO's CEO -- the only employee it has identified as having relevant knowledge to the case -- resides in Southern California, as does SITO's previous CEO," Williamson wrote in the writ petition.

Ronald M. Daignault, a partner with Daignault Iyer LLP who represents the plaintiff, could not be reached Monday about whether the patent holding company would seek en banc review.

He argued that Hulu failed to meet the high burden to establish that the Central District of California was clearly the more convenient venue, citing a couple of witnesses who live in the Texas district.

Daignault wrote that Albright "saw through Hulu's bare statements and generalizations and carefully considered the full record" before concluding the Central District of California was not the "clearly more convenient venue."

O'Melveny also won a writ of mandate overruling Albright on June 30 in a different case for clients Samsung Electronics Co. Ltd. and LG Electronics USA Inc. That patent lawsuit was ordered transferred to the Northern District of California.