Smörgåsbord & Link Roundup
We didn’t have time to get to it on Friday, so instead we’ll begin this week with a link roundup, with mini-summaries of our own layered in.
The VLSI-Intel trial may be done, but Waco Division media coverage has slowed barely, if at all. Here’s what came across our radar over the past couple weeks or so (including some stories originally published during the trial, but not related to VLSI-Intel).
First, last week Lex Machina released its 2021 Patent Litigation Report (summary graphic here), which unsurprisingly observed the importance of Judge Albright’s Court to the national patent litigation landscape (19% of nationwide patent filings!). In relation to which:
- Mark spoke with Scott Graham of Law.com about how the Surge in Western District Filings Is Resetting the Patent Landscape (subscription required)
- Dani Kass of Law360 also covers the report: Judge Albright Now Oversees 20% Of New US Patent Cases (subscription required)
You may recall our prior coverage of SynKloud v. Adobe (here), in which Judge Albright transferred the case to NDCA following receipt of a mandamus order from the Federal Circuit. SynKloud has now petitioned SCOTUS for certiorari.
- Prof. Dennis Crouch of Patently-O has a detailed take on the questions presented to the Supreme Court, along with a preliminary assessment of the petitioners’ chances: Discretionary Transfer out of Waco
- Perry Cooper of Bloomberg Law has coverage here: Adobe Patent Suit Move Out of Waco Challenged at Supreme Court (subscription required)
- SynKloud’s cert petition was also covered by Adam Lidgett of Law360: Justices Told Adobe IP Case Wrongly Ordered Out Of WDTX (subscription required)
In other mandamus-related news, the Federal Circuit, in In re: TracFone Wireless, on March 8 again issued a mandamus order staying District Court proceedings until such time as the Court ruled on a long-pending transfer motion:
- Andrew Karpan of Law360 has coverage: Albright Transfer Delay Is Awfully Familiar, Says Fed. Circ. (subscription required)
- As does Perry Cooper of Bloomberg Law: Albright Again Ordered to Take Fast Action on Transfer Motion (subscription required)
- And Logan Murr at IPWatchdog: Albright Rebuked Again by CAFC After Letting Second Transfer Motion Linger
- Dennis Crouch at Patently-O, too: Egregious Delay and Blatant Disregard for Precedent (That’s the standard quoted by the Federal Circuit in issuing its directive.)
The District Court denied the transfer three days later. The Court first ruled that TracFone could not dismiss the action for improper venue under FRCP 12(b)(3), on the ground that “[t]aken as true, [plaintiff’s] allegations that Total Wireless owns and operates a store in San Antonio, Texas, and that TracFone does business as Total Wireless would be sufficient to establish that TracFone has a regular and established place of business” in the WDTX under 28 U.S.C. § 1400(b). Then in ruling on the merits of the Section 1404(a) convenience transfer, the Court applied the Fifth Circuit’s Volkswagen factors and ultimately concluded that TracFone’s preferred venue “the Southern District of Florida is slightly more convenient, but [does] not reach the level of clearly more convenient justifying transfer.”
- On Patently-O, Prof. Crouch again takes a dive into the District Court’s analysis with respect to Timing the Venue Inquiry in W.D. Texas, based on (inter alia) the fact that the store in question had, according to TracFone, purportedly been out of business for months before the plaintiff commenced suit.
- Nadia Dreid of Law360 also has coverage: No Transfer In TracFone Patent Suit After Fed. Circ. Scolding
Before Tracfone, there was February’s ruling in In re SK hynix, in which the Federal Circuit first weighed in to fault the Court’s delay in ruling on a transfer motion, and following which the District Court denied the motion at issue. We covered those rulings here (Federal Circuit mandamus) and here (District Court’s denial). Since then, SK hynix filed a second mandamus petition challenging on the merits the Court’s denial of its transfer motion, which the Federal Circuit in turn denied: “The district court properly focused on whether the present action ‘might have been brought’ against the domestic entity and whether, in the alternative, ‘all parties have consented’ to venue in the Central District of California. It concluded that neither alternative basis for a § 1404(a) transfer is met. SK hynix has not established a clear legal right to relief from those conclusions, which suffice to deny transfer.” Related coverage of this second mandamus order came from:
- Matthew Bultman of Bloomberg Law: Federal Circuit Refuses to Send SK Hynix Patent Suits From Texas
- And Netlist’s own press release: Netlist Prevails in Venue Battle as Federal Circuit Denies SK Hynix’s Petition
And of course, even though the VLSI-Intel I verdict is in the books, coverage of both the the recent trial and the upcoming sequels keeps coming:
- It’s little surprise that Law.com named as their Litigators of the Week The Irell Trial Team That Landed a Whopping $2.175B Patent Verdict Against Intel in Waco (subscription required)
- As in VLSI-Intel I, Intel has opposed VLSI’s motion to transfer the VLSI-Intel II case to Waco—now citing the “publicity in Waco surrounding the first trial and verdict” as an additional reason. Dave Simpson of Law360 has the story: Intel Cites VLSI’s ‘Enormous Verdict’ As Reason To Delay Trial (no subscription required, given COVID-related content)
Here’s a handful of additional Law360 COVID-related (and thus accessible-without-subscription) pieces concerning past, present, and future trials in Judge Albright’s courtroom (and elsewhere, to the extent related):
- Katie Buehler covered some comments made by Judge Albright during a February 26 panel, in which the Judge noted that recent technological upgrades to his Waco courtroom (which we covered) “means fewer people in the courtroom,” allowing for both greater safety and greater participation: WDTX Judge Albright Touts Revamped Courtroom Tech. Judge Albright also stated a desire for higher courts to “modernize what’s really considered for [transfer] motions based on convenience,” and again expressed concerns that too many patents at once makes for a difficult jury trial experience, noting that “trying five patents at once” would be “‘really pushing the outer limit of how many patents I would want to take to trial.’”
- Following a stipulated transfer to Austin last year, Ancora Technologies is now moving to return its case against Samsung—currently scheduled for an April 19 trial—to the Waco Division. Ancora argues that Waco’s “the only place an in-person ‘trial actually can proceed’ during the pandemic”; Samsung argues that Ancora should be held to the terms of its stipulation, and notes that in light of recent steps taken by Texas Governor Abbott, the Austin Division may well become available for trial in the near future. Andrew Karpan covers both parties’ positions: IP Biz In Samsung Infringement Fight Wants A Waco Trial Too; Samsung Fights Patent Biz’s Waco Transfer Bid. The transfer motion appears to be set for argument on Wednesday morning, March 17.
- H-E-B is scheduled for an April 12 trial against Digital Retail Apps, and on March 3 moved for a one-month extension, in part based on an argument that “a modest postponement would provide time for H-E-B to bounce back toward normal business operations, as they have recently been busy providing major essential services to Texans and their communities despite the burdens of doing so through COVID-19 and Texas’s recent extreme weather crisis” (ECF 214). Dave Simpson covered the motion: HEB Seeks Patent Trial Delay Due To Virus, PTAB, Weather. And as it turns out, on March 12 the parties stipulated to an extension based on “tentatively reach[ing] agreement on a term sheet for settlement” (ECF 222), so this issue is now apparently moot.
- In denying a motion to delay a May NDCA trial, Judge Yvonne Gonazalez Rogers “is going to seek advice from U.S. District Judge Alan Albright in the Western District of Texas” regarding COVID-related precautions. Dorothy Atkins has the story: Apple, Epic To Face Off In Person In May Trial Despite Virus
And last but not least, in other Federal Circuit-related news, in a final appeal from Judge Albright’s Court following a stipulated judgment of noninfringement as a result of two February 2020 Daubert rulings, on March 1 the appeals court issued a ruling in Finalrod v. John Crane, in which it “conclude[d] that the district court abused its discretion in only one respect: it failed to articulate an explanation for its ruling in excluding” the technical expert’s opinion. “Under the circumstances of this case,” concluded the Federal Circuit, “the appropriate course of action is to vacate the district court’s exclusion of such testimony and remand for the court to ‘examine afresh the admissibility of [the] expert testimony and give reasons for its decision.’” Adam Lidgett of Law360 has related coverage: Fed. Circ. Says Albright Didn’t Explain Why He Barred Expert
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