The Fifth Circuit's en banc mandamus order in an Eastern District of Texas personal injury case, In re Volkswagen of Am., Inc., 545 F.3d 304 (2008) (Volkswagen II), bled over today into the patent realm. The Volkswagen II court held that the district court's error in refusing to move the case to the Northern District of Texas justified the extraordinary writ and directed transfer of the lawsuit to Dallas.
The Federal Circuit, applying Volkswagen II, concluded that the same judge made the same mistake in denying a motion under 28 U.S.C. 1404(a) to hurl a patent infringement action from Marshall, Texas, to Columbus, Ohio. In re TS Tech USA Corp., Misc. No. 888 (Fed. Cir. Dec. 29, 2008). Summing up, the court said:
There is no easy-to-draw line separating a "clear" abuse of discretion from a "mere" abuse of discretion in all cases. Volkswagen II, 545 F.3d at 310. Nevertheless, we conclude that TS Tech has met its difficult burden of demonstrating a clear and indisputable right to a writ. As in Volkswagen II, the district court clearly abused its discretion in denying transfer from a venue with no meaningful ties to the case. In granting mandamus, the en banc Fifth Circuit found that the court’s denial of transfer was a clear abuse of discretion because it (1) applied too strict of a standard to demonstrate transfer, (2) misconstrued the weight of the plaintiff’s choice of venue, (3) treated choice of venue as a § 1404 factor, (4) misapplied the forum non conveniens factors, (5) disregarded Fifth Circuit precedent, including the 100-mile rule, and (6) glossed over the fact that not a single relevant factor favored the plaintiff’s chosen venue. Id. at 318. Because the district court’s errors here are essentially identical, we hold that TS Tech has demonstrated a clear and indisputable right to a writ.
In re TS Tech, slip op. at 8.
Blawgletter hesitates to make predictions, but we imagine that the combination of Volkswagen II and TS Tech will influence patent plaintiffs' calculus in deciding whether to sue in the Eastern District of Texas -- and, indeed, anywhere within the Fifth Circuit. Patent cases seemed for awhile to enjoy relative immunity from the usual section 1404(a) analysis in E.D. Tex. Volkwagen II struck us as a reaction -- actually, an over-reaction -- to that, and TS Tech merely represents the logical extension.
Don't get us wrong. Volkswagen II feels extreme. But 10 out of 17 Fifth Circuit judges didn't mind. And so things will stay unless the Supreme Court or Congress takes a hand.
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