Patent cases should be moved to California, Circuit tells Texas judge

A federal appellate court is continuing to grant transfer motions filed by Silicon Valley technology giants that are challenging a Texas judge's denial of their bids to move patent infringement cases to California.

The companies -- including Google LLC and Juniper Networks Inc. -- aren't winning every mandamus motion, but U.S. Court of Appeals for the Federal Circuit panels are increasingly receptive to their arguments.

There have been six rulings of writs of mandamus since Sept. 24, all involving rulings by U.S. District Judge Alan D. Albright of Waco. All but one were appeals of the judge's denials of motions to transfer cases from the Western District of Texas to the Northern District of California.

Of those five cases, the technology companies prevailed in four of them.

"The law is going to continue moving on this," said Michael D. Smith, a partner at Scheef & Stone LLP who is not involved in any of the cases. "I don't think [Federal Circuit judges] have sent a signal that they are tired of looking at these."

The fate of cases before Albright, a former patent litigator who was appointed to the bench in 2018 by President Donald Trump, are significant because he now handles more patent infringement lawsuits than any other judge in the nation.

But defendants have filed motions, as they have done in the Eastern District of Texas, to remove cases to the defendant company's home district. California district courts are perceived as more favorable venues for them.

In a Sept. 27 order, a Federal Circuit panel rejected Albright's conclusion that witness convenience and the Alphabet Inc. subsidiary's Austin campus, within the Western District of Texas, disfavored transfer of the case.

"Because the accused products were designed and developed in the transferee venue and are not related to Google's presence in Texas, we agree that the local interest factor should have been weighted strongly in favor of transfer," the panel wrote in a per curiam decision. In re: Google LLC, 21-170 (Fed. Cir., filed Aug. 6, 2021).

The panel sided with arguments by Quinn Emanuel Urquhart & Sullivan LLP partner Charles K. Verhoeven, who represents Google, and ordered the case transferred.

Last Wednesday, Google prevailed again, persuading another Federal Circuit panel to overrule Albright and transfer a patent infringement lawsuit filed by Jenam Tech LLC to the Northern District of California.

Dan L. Bagatell of Perkins Coie LLP and Robert A. Van Nest of Keker, Van Nest & Peters LLP represent Google in that case. In re: Google LLC, 21-171 (Fed Cir., filed Aug. 9, 2021).

Juniper has scored two victories in separate cases on writ petitions challenging Albright's denial of its transfer motions.

But a Federal Circuit panel rejected a writ petition by Intel Corp. and Samsung Electronics Co. Ltd. in a related patent infringement lawsuit filed by Demaray LLC. The panel ruled that "Samsung's and Applied [Material Corp.]'s operations within the Western District of Texas are likely to be important sources of evidence and witnesses in Samsung's case."

While many Silicon Valley technology companies have opened large facilities in Austin and other cities in the Western District of Texas, Federal Circuit judges have generally been less impressed with that fact unless the activity involved in the lawsuit took place there, Smith said.

In his writ petition for Google, Verhoeven wrote that Albright "should have assessed whether there were any significant connections between [the Western District of Texas] and 'the events that gave rise to a suit.'"

Smith said the Federal Circuit also does not take into consideration how long it will take a case to get to trial, a point Albright concluded favored keeping cases in the Lone Star State but that California defendants contest.

The Federal Circuit rulings might be affecting Albright's decisions in other cases. On Wednesday, he dismissed a lawsuit by GreatGigz Solutions LLC against online retailer Instacart, known as Maplebear Inc. for being filed in the improper venue.