By Paul R. Gugliuzza, Temple College Beasley Faculty of Legislation Jonas Anderson, American College Washington Higher education of Law and Jason Rantanen, College of Iowa School of Regulation. This is the 2nd in a new sequence on venue transfer requests and mandamus at the Federal Circuit.
Litigants should not get to opt for the choose who decides their case. To us, that would seem like an uncontroversial proposition. The capacity to “judge shop” is the most important motive patentees as soon as flocked to the Marshall Division of the Japanese District of Texas to file their infringement suits and are now flocking to the Waco Division of the Western District of Texas, where they’re certain to have their case assigned to Choose Alan Albright. Judge purchasing, we’ve argued elsewhere, raises issues about courtroom bias and capture and can make litigation unnecessarily costly and inefficient.
A lot of scholars, customers of Congress, and even the Main Justice have raised considerations about choose purchasing, with a unique eye toward patent circumstances. Furthermore, the Federal Circuit has indicated skepticism about the swift accumulation of patent fits in Waco. In the earlier two years, the court has applied the amazing writ of mandamus to order in excess of twenty patent instances filed in Waco to be transferred in other places below 28 U.S.C. § 1404(a), which permits transfer “[f]or the comfort of get-togethers and witnesses, in the desire of justice.” (More than the very same time time period, the Federal Circuit granted only two § 1404(a) mandamus petitions arising from any other court docket, both equally from the Japanese District of Texas.)
However we imagine the harms brought about by a bash getting ready to pick out its very own choose are obvious and indeniable, there is a counternarrative. It goes a thing like this: the Federal Circuit is polluted with “anti-patent sentiment.” It is captured by the large tech corporations that are the most frequent targets of infringement suits—Apple, Google, and the like. And the Federal Circuit is thwarting patentees (and innovation) by sending infringement cases away from patentees’ selected courts in Texas to destinations that are friendlier to defendants, these as the Northern District of California.
Fortunately, info we have gathered as section of our complete empirical analyze of mandamus apply at the Federal Circuit can help us evaluate whether or not, when it will come to thoughts about patent venue, the Federal Circuit is truly in the pocket of large tech.
1st off, it is accurate that mandamus petitions trying to find transfer from Texas to the Northern District of California are extra likely to be granted than petitions in search of transfer to other districts. As the table under reveals, from 2008 by 2021, the Federal Circuit granted 32.% of mandamus petitions trying to find to overturn a district court docket selection denying transfer from the Eastern District of Texas to the Northern District of California as as opposed to 25.6% of petitions in search of transfer from the Japanese District of Texas to any district apart from the Northern District of California. Furthermore, the Federal Circuit granted 63.2% of mandamus petitions trying to get to overturn a district court docket decision denying transfer from the Western District of Texas to the Northern District of California as compared to 46.2% of petitions looking for transfer from the Western District of Texas to any district other than the Northern District of California.Total, mandamus petitions searching for to overturn a district courtroom determination denying transfer from possibly Texas district to the Northern District of California were being granted 45.5% of the time, while petitions looking for transfer from either Texas district to any district besides the Northern District of California had been granted only 30.8% of the time.
To be apparent, this disparity in grant charges between transferee courts doesn’t create that the Federal Circuit unduly favors Silicon Valley-based tech organizations. Fairly, it might be that situations submitted in opposition to those businesses in Texas existing specifically strong situations for transfer provided that the defendants’ workplaces, personnel, files, and R&D facilities are inclined to be positioned in California. Irrespective, the knowledge does make crystal clear that a mandamus petition seeking transfer from Texas to the Northern District of California is approximately 40% a lot more very likely to be granted than a petition in search of transfer from Texas to any other district.
To much better gauge large tech’s achievement at the Federal Circuit, we can also search at the grant prices for specific mandamus petitioners. We identified these benefits, frankly, a minimal stunning. 1st of all, there are not as many repeat petitioners as one may well consider. In whole, from 2008 by way of 2021, approximately 185 specific functions joined a person or extra petitions for a writ of mandamus trying to find to overturn a determination by the Japanese or Western District of Texas denying transfer underneath § 1404(a). (For the objective of this assessment, we combined naturally similar company entities, these types of as Samsung Electronics and Samsung Electronics The united states. Also, because many petitions are joined by various events, the overall quantity of petitioners is substantially much larger than the number of Federal Circuit selections.)
The most regular petitioner in our dataset is Apple, which submitted 16 petitions above the 14 several years covered by our review. The Federal Circuit granted 4 of those petitions. The most successful petitioner of notice is Google, which prevailed on 4 of its 6 petitions. But these figures are modest, generating it tough to draw definitive conclusions.
The table underneath shows the success of Federal Circuit mandamus decisions in which the Japanese or Western District of Texas denied transfer under § 1404(a), constrained to petitioners who appeared in three or a lot more decisions from 2008 as a result of 2021.As indicated on the to start with desk higher than, the over-all grant rate for Federal Circuit mandamus petitions difficult denials of § 1404(a) transfer motions by the Jap or Western District of Texas is 37.5%, so these repeated petitioners do about common. (While of study course the mandamus grant fees in situations out of the Jap and Western Districts of Texas are a great deal bigger than in instances submitted in other places.)
If we included the Federal Circuit’s mandamus conclusions from 2022 (after we closed the dataset for our analyze at the stop of 2021), the numbers would transform rather. Apple is 2- this 12 months, which ups its grant level to 33.3%. Google also received its only petition in 2022, bumping its grant level up even better, to 71.4%. Samsung similarly is 1- this calendar year, so its rate is now 50%. Nevertheless, we would hesitate to say that any of this establishes that the Federal Circuit is biased against patentees and in thrall to major tech.
To be confident, the world’s richest businesses, like Apple and Google, take pleasure in enormous strengths any time they litigate the notion that we have an impartial court docket procedure indifferent to litigants’ economic ability is fanciful. But it is also specious to assert that the Federal Circuit’s mandamus observe suggests court docket capture by massive tech. Far more very likely, the Federal Circuit is making use of the imperfect equipment at its disposal to correct a actual issue: the questionable incentives for both equally judges and litigants in a system wherever the celebration submitting a scenario gets to decide on its decide.