IP UPDATE
Exploring the Latest in Intellectual Property Law
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Reprints Do Not Change Earlier Publication Date

by | Dec 10, 2020 |

Addressing the entirety of the evidence standard, the US Court of Appeals for the Federal Circuit affirmed a Patent Trial and Appeal Board finding that responsive evidence can be properly considered to demonstrate the public availability of a reference relied upon in an inter partes review (IPR) petition. VidStream LLC v. Twitter, Inc., Case Nos. 19-1734, -1735 (Fed. Cir. Nov. 25, 2020) (Newman, J.)

Youtoo Technologies sued Twitter for infringement of a patent directed to recording and publishing content on social media websites. In response, Twitter filed two IPR petitions challenging the asserted patent claims as obvious. The IPR petitions relied on a textbook (Bradford) as a primary reference in both petitions. Bradford was first published in 2011, but the copy provided with the petitions indicated a reprint date of 2015. The Board granted the IPR petitions and ultimately found all claims unpatentable over combinations of art including Bradford. VidStream, which emerged as the patent owner after Youtoo went through bankruptcy proceedings, appealed.

VidStream argued that the Board erred in accepting and considering evidence that Twitter provided for the first time with its replies, instead of considering only the documents that Twitter filed with its original petitions. Specifically, Twitter filed with its replies a copy of the US Copyright Office Certificate of Registration stating that Bradford’s date of first publication was November 8, 2011; a Library of Congress copy of Bradford; and a declaration by Twitter counsel that he had compared the excerpts of Bradford that were submitted with the petition with the same pages in the 2011 Library of Congress copy of Bradford and found them “identical.” VidStream stated that the Bradford pages filed with Twitter’s petitions were published December 13, 2015, and thus argued that Twitter did not show that these pages were available before the patent’s 2012 priority date. VidStream maintained that the Board erred in considering Bradford in the obviousness combinations.

The Federal Circuit noted that VidStream had challenged the proper priority date of Bradford before the Board and had also filed a motion to exclude Bradford as improper evidence. The Board denied VidStream’s motion to exclude, finding that it was appropriate to permit Twitter to respond to VidStream’s challenge by providing additional evidence to establish the Bradford publication date. In line with its 2018 Nobel Biocare Servs. AG v. Instraden USA Inc. and Anacor Pharm. decisions, the Court found that the responsive evidence supported the Board’s finding that Bradford was published and publicly accessible before the patent’s priority date. Like the Board, the Court considered the entirety of the evidence relevant to a determination of printed publication. For example, the ISBNs of the 2011 and the 2015 printings of Bradford were the same, and a Machine-Readable Cataloging record had been created for Bradford in August 2011. Bradford was also printed by an established publisher, and the internet archive included an Amazon webpage for Bradford, further confirming that Bradford was publicly accessible in 2011 and that interested persons could access and order the book in [...]

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Apportionment Unnecessary When Royalty Is Based on Comparable License

by | Dec 3, 2020 |

Rejecting a defendant’s request for a new trial on a variety of grounds, the US Court of Appeals for the Federal Circuit affirmed a damages award and explained that apportionment was unnecessary because a sufficiently comparable license was used to determine the appropriate royalty. Vectura Ltd. v. GlaxoSmithKline LLC et al., Case No. 20-1054 (Fed. Cir. Nov. 19, 2020) (Prost, C.J.)

Vectura owns a patent directed to the production of composite active particles for use in pulmonary administration, such as in dry-powder inhalers. Vectura filed a lawsuit against GlaxoSmithKline (GSK) alleging infringement of the patent by GSK’s Ellipta-brand inhalers. At trial, a jury found the patent valid and infringed, and awarded $90 million in damages. After GSK’s motion for judgment as a matter of law (JMOL) on infringement was denied, GSK appealed.

The Federal Circuit affirmed, rejecting all of GSK’s arguments. The Court rejected GSK’s argument that, based on a claim construction issue, it was entitled to JMOL of non-infringement. The asserted claims of the patent related to “composite active particles” made up of particulate additive material (magnesium stearate) on the surface of a particle of active material, used to promote the dispersion of these particles (in, e.g., inhalers). GSK argued that there was no substantial evidence of improved dispersion because Vectura’s scientific test was technically defective. The Court concluded that this test “generally supported” Vectura’s view and that, in any event, Vectura had provided other evidence—including GSK’s own documents—that the accused inhalers demonstrated improved dispersion.

The Federal Circuit also rejected GSK’s argument that the district court had erroneously construed the claim term “composite active particles” to mean “[a] single particulate entit[y/ies] made up of a particle of active material to which one or more particles of additive material are fixed such that the active and additive particles do not separate in the airstream.” GSK argued that this term required use of the “high energy milling” process referred to in the specification of the patent, but the Federal Circuit disagreed, stating that “[a]lthough the [asserted] patent contains a few statements suggesting that its high-energy milling is required . . . those statements are outweighed by the numerous statements indicating that high-energy milling is merely a preferred process.”

The Federal Circuit further rejected GSK’s argument that Vectura’s damages theory was deficient. Vectura’s damages theory was based on a 2010 license between the parties relating to highly comparable technology. GSK argued that Vectura’s damages theory simply adopted the royalty rate from this prior license wholesale and failed to “show that the patented . . . mixtures drove consumer demand for the accused inhalers before presenting a damages theory based on the entire market value of the accused inhalers.” The Court noted that the case presented a “rather unusual circumstance” in that, while apportionment is ordinarily required where an entire-market-value royalty base is inappropriate, “when a sufficiently comparable license is used as the basis for determining the appropriate royalty, further apportionment may not necessarily be required.” The Court concluded that this was “one [...]

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Making Waves: Post-Employment Contract Assignment Provision Invalid Under California Law

by | Dec 3, 2020 |

The US Court of Appeals for the Federal Circuit invoked “precedents that are relevant but not directly on point” to examine when employment contract provisions may require assignment of inventions conceived post-employment and without use of the former employer’s confidential information, finding that an intellectual property assignment provision in the employer’s predecessor’s employment agreement was void under California law. Whitewater West Industries, Ltd. v. Richard Alleshouse, et al., Case No. 19-1852 (Fed. Cir. Nov. 19, 2020) (Taranto, J.)

Richard Alleshouse began working for Wave Loch in 2007 as an engineer in the field of large-scale sheet-wave water attractions, which are surf and wave simulators sometimes seen on cruise ships and in water parks. Alleshouse’s many duties for the company included the inspection, assessment and improvement of the company’s wave rides; the development of new rides; and product management of the company’s branded FlowRider sheet wave attraction.

After almost five years with the company, Alleshouse consulted with a lawyer, Yong Yeh, regarding the scope of his employment agreement with Wave Loch, which included intellectual property assignment terms that survived termination of the employment agreement. Following that consultation, Alleshouse and Yeh discussed the idea of starting their own company to design sheet-wave attractions. In August 2012, Alleshouse resigned from Wave Loch, and in October 2012, Alleshouse and Yeh filed provisional patent applications that resulted in three different US patents describing and claiming certain “water attractions involving a flowing body of water on a surface” and “nozzle shapes and configurations which create a flowing body of water over a surface.”

In 2017, Whitewater West Industries, the successor to Wave Loch, sued Alleshouse, Yeh and their new company, Pacific Surf Design, in federal district court in California, asserting claims for breach of contract and correction of inventorship. In particular, Whitewater sought an assignment of the three patents under the terms of Alleshouse’s employment contract with Wave Loch, and claimed that Yeh was improperly listed as an inventor on each of the three patents. The district court ruled for Whitewater and found that the intellectual property assignment provision in Alleshouse’s employment agreement was valid and thus breached due to the failure to assign the patent rights at issue. Alleshouse appealed.

Alleshouse challenged the employment agreement’s intellectual property assignment provision as invalid under California Labor Code § 16600, which prohibits any contract provision that restrains a person from a lawful profession, trade or business, and under § 2870(a), which prohibits requiring an employee to assign over any invention that an employee developed entirely on her own time without using the employer’s equipment, supplies, facilities or trade secret information (with certain enumerated exceptions for employee inventions related to the employer’s business or the employee’s work for the business). The parties agreed on two factual points that were important to the Federal Circuit’s analysis on appeal: that the inventions at issue were not conceived until after Alleshouse left his job at Wave Loch, and that Alleshouse did not use any trade secret or confidential information belonging to Wave [...]

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“Icy” Guidance on Polaroid Factors

by | Dec 3, 2020 |

In a “somewhat unusual” trademark case involving directly competing products and marks using the same words, the US Court of Appeals for the Second Circuit reversed in part and affirmed in part the grant of summary judgment for the accused infringer on trademark infringement and dilution claims. The Court found that the similarity of the marks and bad faith on part of the accused infringer weighed in favor of finding infringement. Car Freshner Corp. v. American Covers, LLC, Case No. 19-2750 (2d Cir. Nov. 19, 2020) (Newman, J.)

Car Freshner and American Covers both sell car air freshener products. Car Freshner filed a lawsuit against American Covers alleging that Car Freshner’s trademark “Black Ice” was infringed and diluted by American Covers’ sale of air freshener products using the words “Midnight Black Ice Storm.” The district court rejected Car Freshner’s trademark infringement claim, concluding that “Midnight Black Ice Storm” was not similar enough to “Black Ice” to create a likelihood of confusion about the source of the products. The district court also rejected Car Freshner’s trademark dilution claim, concluding that the marks in question were not sufficiently famous. Car Freshner appealed.

On appeal, the Second Circuit reversed the district court’s entry of judgment for American Covers on the trademark infringement claim. Reviewing the trademark infringement claim using the eight Polaroid factors, the Court noted the lack of guidance regarding how much weight to accord each of the factors. Despite this lack of guidance, the Court was particularly persuaded by two of the Polaroid factors: the similarity of the marks, and bad faith on the part of the accused infringer. As to the similarity of the marks factor, the Court noted that “[i]t is extremely unusual for the mark of a junior user to include two identical words of a senior user’s mark in sequence[,]” particularly when both users are competitors in the same market. Despite the differences in packaging between the two products, the Court found that the similarity of the marks weighed heavily in favor of a finding of trademark infringement. As to the bad faith factor, the Court found that emails produced by American Covers, which revealed that its employees specifically chose product names meant to encourage customers to form a connection between American Covers’ products and Car Freshner’s products, were “explicit evidence of bad faith” on the part of American Covers.

As to the dilution claim, the Second Circuit affirmed the district court’s summary judgment finding, concluding that there was no evidence that either of the marks in question was famous.

Practice Note: Although courts have not provided guidance on how to weigh the Polaroid factors in trademark cases, this case demonstrates that two of the factors (similarity of the marks and bad faith on the part of the accused infringer) can be especially persuasive, particularly when the evidence for these factors is strong.



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Covered Business Method Threshold Review Is Not Appealable

by | Nov 24, 2020 | ,

The US Court of Appeals for the Federal Circuit found that in view of the Supreme Court of the United States’ 2019 decision in Thryv v. Click-to-Call, the Patent Trial and Appeal Board’s threshold determination that a patent qualifies for covered business method (CBM) review is closely tied to the institution decision and is therefore not appealable. SIPCO, LLC v. Emerson Electric Co., Case No. 18-1635 (Fed. Cir. Nov. 17, 2020) (Chen, J.)

SIPCO owns a patent directed to a communication device that uses a two-step communications path, where a remote device first communicates through a low-power wireless connection to an intermediate node, which in turn connects to a central location. Emerson filed a CBM petition arguing that the claims were obvious over the prior art. The Board instituted a CBM review and issued a final written decision finding the challenged claims obvious over the prior art. SIPCO appealed.

SIPCO argued that the Board overstepped its authority to institute a CBM review because the patent was directed to a “technological invention” and was statutorily excluded from CBM review. The Federal Circuit initially found that the Board’s threshold analysis was flawed because it focused solely on the second portion of the “technological invention” definition set forth in 37 CFR § 42.301(b). The Court vacated the Board’s decision and remanded for it to consider both parts of the definition, and to reconsider whether the patent qualified for CBM review (IP Update, Vol. 22, No. 20).

Emerson filed a petition for a writ of certiorari in the Supreme Court, arguing that the Board’s decision to institute a CBM review is not appealable under the “no appeal” provision of 35 USC § 324(e). The Supreme Court granted the petition, vacated the Federal Circuit opinion and remanded for further consideration in light of the Supreme Court’s decision in Thryv, which found that the one-year time bar for instituting an inter partes review is bound up with the decision to institute and therefore is not appealable under a similar “no appeal” provision.

On remand, the Federal Circuit found that Thryv made clear that the Board’s threshold determination as to whether a patent qualifies for CBM review is a decision that is non-appealable. Availability of the CBM review process is conditioned on whether the patent qualifies for CBM review, and patents that are directed to “technological inventions” are excluded from CBM review. The Court concluded that the determination of whether a patent qualifies for CBM review is inextricably tied to the decision to institute and is thus not appealable. Turning to the merits, the Court found the Board’s claim construction correct and its obviousness determination supported by substantial evidence.

Practice Note: In a footnote, the Federal Circuit recognized that Thryv implicitly abrogated the Court’s prior practice of reviewing whether the Board’s institution determination breached the limits of the Board’s authority.



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Wave Goodbye to Lost Arguments: Waiver Versus Forfeiture Law

by | Nov 24, 2020 | ,

The US Court of Appeals for the Federal Circuit concluded that a patent owner forfeited claim construction arguments on appeal by not presenting them first to the Patent Trial and Appeal Board for consideration. In re: Google Tech. Holdings LLC, Case No. 19-1828 (Fed. Cir. Nov. 13, 2020) (Chen, J.)

Google submitted an application to the US Patent and Trademark Office (PTO) seeking patent claims covering certain means and methods for transferring content to video-on-demand systems. During examination, the examiner rejected Google’s proposed claims based on obviousness in light of certain references. After receiving a final rejection, Google appealed to the Board, relying heavily on block quotes from the references and proposed claims to argue that the examiner improperly found obviousness.

The Board affirmed the examiner’s rejection. Applying the broadest reasonable interpretation standard, the Board construed two claim terms: “costs” and “network impact.” In defining those terms, the Board noted that Google had not, in the course of appealing the examiner’s decision, “cited to a definition of ‘costs’ or ‘network impact’ in the [s]pecification that would preclude the [e]xaminer’s broader reading.” Google appealed.

Google argued that the Board erred in its constructions. The Federal Circuit never reached the merits, however, instead concluding that Google had not properly presented its arguments first to the PTO. The Court described the oft-forgotten difference between waiver (the voluntary and knowing relinquishment of a right) and forfeiture (the failure to make a timely assertion of a particular right). This case, the Court reasoned, was an example of forfeiture, because Google had failed to urge the claim constructions to the PTO in the first instance.

Google contended that the Federal Circuit should nonetheless review the Board’s determination, because the Board actually ruled on the claim constructions and those issues were ripe for decision before the Court. The Court rejected these arguments, largely because Google identified no excuse for failing to raise the issue earlier, and because the Board’s final decision was not unexpected in the course of the proceedings.

Practice Note: Ultimately, the Court’s opinion presents one approach (perhaps not one consistently followed) regarding what an appellant must do in order to maintain its right to review. Appellees seeking to foreclose appellate review should consider whether, regardless of the Board’s ultimate decision, the appellant appropriately pressed the arguments on the error for which it later seeks appellate review.



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“Gradual” and “Continuous” Includes Step-Wise

by | Nov 19, 2020 |

The US Court of Appeals for the Federal Circuit affirmed a priority decision in favor of the senior party, upholding a claim construction that was based upon a verbatim definition set forth in the patent specification of the application from which the count in interference was copied. Chevron U.S.A. Inc. v. University of Wyoming Research Corp., Case No. 19-1530 (Fed. Cir. Nov. 4, 2020) (Schall, J.) (Newman, J., dissenting).

Wyoming Research provoked a patent interference proceeding by copying into its pending application a claim from Chevron’s pending patent application. Under the now-discontinued interference statute, the patent for an invention claimed by more than one party was awarded to the first-to-invent party. If the Patent Trial and Appeal Board (Board)determined there was an interference in fact—that is, two patent applications claimed the same subject matter—then the Board could proceed to determine priority of inventorship. A finding of interference in fact required the copying party’s patent specification to contain adequate written description and enablement to support the copied claim.

The copied claim was directed to a method of fractioning asphaltenes from crude oil. The technology used a mobile phase into which an alkane solvent was introduced and its concentration “gradually and continuously” changed over time, and the resulting eluted fractions were analyzed. The disputed claim limitation was: “gradually and continuously changing the alkane mobile phase solvent to a final mobile phase solvent.”

Chevron argued that “gradually and continuously changing” referred to the act of feeding alkane mobile phase solvent into the inlet of the column. Relying on intrinsic evidence, the Board instead adopted Wyoming’s construction, concluding that the limitation’s “gradually and continuously changing” referred to the change of solvents in the column and not to changes at the inlet to the column. The distinction was important because at the inlet, the Wyoming invention introduced solvent in a step-wise manner. The parties agreed that Wyoming’s specification supported only the construction adopted by Board, and Wyoming was declared to be the senior party for the priority contest.

Because Chevron had filed a priority statement that indicated that its earliest corroborated conception coupled with diligence date was later than Wyoming’s priority date, the Board determined that Chevron was unable to prevail on priority and entered judgment in favor of Wyoming. Chevron appealed.

On appeal, Chevron argued that the Board’s construction was inconsistent with Chevron’s patent specification. Chevron contended that its application disclosed that the solvent was “gradually and continuously” changed at the column’s inlet and that the Board’s construction rendered the limitation meaningless because it encompassed even “sudden, abrupt immediate solvent switches.”

The Court affirmed the Board’s construction, holding that the broadest reasonable construction of “gradually and continuously changing” did not require a change of solvents at the column inlet. The Court reasoned that the Board’s construction was consistent, and indeed tracked verbatim, with the Chevron application’s express definition of “gradually.” While the Court acknowledged that certain examples in the Chevron application illustrated that one way to implement a “gradual and continuous change” of the [...]

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Summary Judgment Foreclosed when There Is More than One Possible Inference from Evidence

by | Nov 19, 2020 |

Reversing a summary judgment ruling that barred a correction of inventorship claim, the US Court of Appeals for the Federal Circuit, found issues of material fact foreclosed summary judgment and warned that where an issue is a “quintessentially fact-laden one” such as equitable issue involving possible equitable estoppel on inventorship, summary judgement is likely not appropriate.. Ferring B.V. et al. v. Allergan, Inc. et al., Case No. 20-1098 (Fed. Cir. Nov. 10, 2020) (O’Malley, J.)

From 1998 to 2002, Dr. Seymour Fein worked as a consultant for Ferring Pharmaceuticals to develop a drug that helps regulate the body’s retention of water. That work apparently did not include any obligation by Fein to assign any inventions. As a result, both Ferring and Fein ultimately filed dueling patent applications directed to aspects of the drug and its use. In correspondence that took place while patent prosecution was pending, Fein indicated to Ferring that his application would be directed to a low dose administration route for the drug. Ferring responded that it believed that aspect (i.e., the low dose route) to be disclosed by prior art. Both sides eventually obtained patents, and Fein assigned his patents to Allergan.

In 2012, Ferring filed a state court action for correction of inventorship, seeking to add its researchers to Fein’s patents. Allergan counterclaimed with its own inventorship claim seeking to add Fein to Ferring’s patents, and also asserted an equitable estoppel defense based on the above-noted correspondence between the parties that occurred during patent prosecution. Allergan then moved for summary judgment on its equitable estoppel defense, which was granted. The judge subsequently held a bench trial and rejected Allergan’s inventorship claim. Ferring appealed the summary judgment decision.

On appeal, the Federal Circuit rejected Ferring’s argument that the trial court should not have considered any conduct that preceded issuance of the patents for purposes of equitable estoppel. However, the Federal Circuit held that the trial court’s summary judgment decision had improperly resolved issues of material fact regarding that pre-issuance conduct. According to the Federal Circuit, the pre-issuance discussions did not lead to only one possible inference, but rather were subject to interpretation because the claim scope discussed (low dose administration) did not necessarily match the claim scope ultimately granted. As a result, the Federal Circuit vacated the summary judgment decision and remanded to the district court.



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Printed Matter Is Patentable If It’s Functional, Not Just Communicative

by | Nov 19, 2020 |

In a tour de force of issues related to the printed matter doctrine, the US Court of Appeals for the Federal Circuit reversed various rulings that the patents-in-suit were not infringed, not willfully infringed and invalid as directed to printed matter. Instead, the Court held that there was substantial evidence in the record to support a jury finding of infringement and willfulness, and that the asserted claims were not directed solely to printed matter and thus were patent eligible under 35 USC § 101 (thereby raising a genuine dispute of material fact that precludes summary judgment as to anticipation). C R Bard Inc. v. AngioDynamics, Inc., Case Nos. 19-1756, -1934 (Fed. Cir. Nov. 10, 2020) (Reyna, J.)

This dispute began when Bard sued AngioDynamics for infringing three patents directed to identifying a vascular access port that is suitable for power injection, which is a medical procedure requiring injecting fluids into a patient at a high pressure and flow rate. Generally, the identification was accomplished by certain markings on the vascular access port that can be detected during an x-ray scan.

Prior to trial, AngioDynamics moved for summary judgment on patent eligibility, novelty and enablement. This summary judgment motion was initially denied, but the district court sought a report and recommendation prior to trial regarding whether certain limitations relating to radiographic marker images were entitled to patentable weight under the printed matter doctrine. The magistrate judge concluded that the limitations were not entitled to patentable weight, and the district court adopted the recommendation. At trial and at the end of Bard’s case-in-chief, AngioDynamics moved for judgment as a matter of law (JMOL) on non-infringement and no willfulness. Ultimately, the district court terminated the trial and granted AngioDynamics’ JMOL motion for non-infringement and no willfulness. The district court further held that the claims were invalid because they were directed to printed matter and were not inventive. Bard appealed, challenging each of the district court’s findings.

In reversing the summary judgment of no infringement, the Federal Circuit explained that Bard’s expert’s reliance on an incorrect understanding of the district court’s claim construction was alone insufficient to grant judgment as a matter of law. Instead, the expert’s misunderstanding went to credibility, and the Court found the record reflected that the expert properly testified that the various claim elements were met under the proper claim constructions. The Court further explained that Bard did not have an affirmative duty to test AngioDynamics products, but rather was entitled to rely on AngioDynamics’ representations to the US Food and Drug Administration and to its customers. With regard to induced infringement, the Court explained that if an alleged infringer instructs its users to use the product in an infringing way, there is sufficient evidence for a jury to find infringement. Because the district count found no inducement based on its erroneous summary judgment of no infringement, that ruling was similarly reversed.

The Federal Circuit also reversed the district court on its summary judgment of no willfulness, concluding that Bard [...]

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Transfer Motions Must Take Top Priority

by | Nov 19, 2020 |

The US Court of Appeals for the Federal Circuit granted an accused infringer’s mandamus petition to transfer a case from the Western District of Texas to the Northern District of California, concluding that the district court “barreled ahead” on the merits before addressing the transfer motion and clearly abused its discretion in denying transfer. In re. Apple, Inc., Case No. 20-135 (Fed. Cir. Nov. 9, 2020) (Prost, C.J.) (Moore, J., dissenting). In re. Apple, Inc

In September 2019, Uniloc sued Apple in the Western District of Texas alleging that several Apple products infringed one of Uniloc’s patents. In November 2019, Apple moved to transfer the case to the Northern District of California on the basis that it would be clearly more convenient to litigate the case in that district. In January 2020, Apple moved to stay all activity in the case unrelated to its transfer motion pending a decision on that motion. The district court denied the stay motion without explanation. In May 2020, the district court held a hearing on Apple’s transfer motion during which the court stated that it would deny the motion and issue a written order as soon as possible. After the hearing, but before issuing a written order, the court held a Markman hearing, issued its claim construction order, held a discovery hearing and issued a corresponding discovery order. In response to these advances in the case, in June 2020 Apple filed a petition for writ of mandamus requesting that the Federal Circuit transfer the case to the Northern District of California. One week after Apple filed its petition, the district court issued its written order denying transfer.

The Federal Circuit granted Apple’s mandamus petition and directed the district court to transfer the case to the Northern District of California. The Federal Circuit explained that the US Court of Appeals for the Fifth Circuit assesses transfer requests using private and public interest factors. The private interest factors are: “(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.” The public interest factors are: “(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law.” The parties agreed that the third and fourth public interest factors were neutral, but disputed whether the remaining factors weighed for or against transfer.

The Federal Circuit found numerous errors in the district court’s analysis. As to the first private factor (access to sources of proof), the Court found that the district court erred in determining that the location of witnesses weighed in favor of transfer. The Court explained that the “access to proof” factor [...]

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