What’s Next for VLSI-Intel? (Chapter 2)

There’s now some more clarity on next steps in the VLSI v. Intel case. Intel and VLSI filed their opposition and reply briefs (respectively) yesterday, December 29. The Court and parties convened for a Zoom hearing at 10AM Central this morning.

The parties’ argument largely focused on the proper interpretation of the final paragraph of the Federal Circuit’s In re: Intel order (which we covered last week), and in particular, the issue of whether “‘unanticipated post-transfer events frustrated the original purpose for transfer’ of the case from Waco to Austin originally.”

At risk of dramatically oversimplifying the issues in dispute, it seems fair to summarize that VLSI interpreted the proper inquiry as a whole, such that the COVID-19 pandemic’s indefinite closure of the Austin Federal District Courthouse for trials effectively dominated the analysis, and that other factors that might have mattered to a transfer determination earlier on (e.g., location of relevant documents) were now effectively moot given the completion of discovery.

In contrast, Intel’s focus was on whether post-transfer events specifically upended the Court’s prior findings with respect to each of the individual Fifth Circuit Volkswagen factors—as one representative example, noting that nothing about the COVID-19 pandemic had affected the availability of the Austin-based witnesses for trial (which in turn informed Austin’s greater interest in the case relative to Waco).

Intel also stated that if the Court granted VLSI’s motion, Intel intends to file another mandamus petition before the Federal Circuit, and expressed timing-related concerns. Intel specifically raised that based on the current January 11 trial date, Intel would have to start flying witnesses down to Waco, during the midst of the pandemic, as soon as next week—without knowing for sure whether the Federal Circuit might then reverse the District Court, such that there wouldn’t actually be a trial for those witnesses to attend.

Ultimately, Judge Albright proceeded in a characteristically practical fashion: The Court indicated on the record that it was inclined to grant VLSI’s transfer motion, but that it would vacate the January 11 trial date and reset trial for February 16, so as to allow Intel sufficient time to seek relief from the Federal Circuit. The Court informed the parties that it plans to issue a written order by the end of this week, so as to allow Intel to pursue appellate review based on a complete record of the Court’s findings on VLSI’s motion.

As before, we’ll continue to monitor the situation and bring you any more important updates.

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