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`
`Miscellaneous Docket No. ____
`
`United States Court of Appeals
`for the Federal Circuit
`
`
`
`IN RE EMERSON ELECTRIC CO.
`and MICRO MOTION, INC.,
`
`
`Petitioners.
`
`
`
`Petition for Writ of Mandamus to the United States District Court for the Eastern
`District of Texas in Case No. 6:12-cv-799, Leonard Davis, Judge.
`
`PETITION FOR WRIT OF MANDAMUS
`
`
`
`FOLEY & LARDNER LLP
`Linda E.B. Hansen
`Richard S. Florsheim
`Jeffrey N. Costakos
`Kadie M. Jelenchick
`777 East Wisconsin Avenue
`Milwaukee, WI 53202
`Phone: 414.271.2400
`Facsimile: 414.297.4900
`
`Counsel for Petitioners Emerson
`Electric Co. and Micro Motion, Inc.
`
`November 25, 2013
`
`
`
`COUNSEL PRESS, LLC
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`(202) 783-7288
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`
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`

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`CERTIFICATE OF INTEREST
`
`Counsel for Petitioners Emerson Electric Co. and Micro Motion, Inc.
`
`certifies the following:
`
`1.
`
`The full name of every party or amicus represented by me is:
`
`Emerson Electric Co. and Micro Motion, Inc.
`
`2.
`
`The name of the real party in interest (if the party named in the
`
`caption is not the real party in interest) represented by me is: None.
`
`3.
`
`All parent corporations and any publicly held companies that
`
`own 10 percent or more of the stock of the party or amicus curiae represented by
`
`me are: Emerson Electric Co. and Micro Motion, Inc., a wholly-owned subsidiary
`
`of Emerson Electric Co., a publicly held corporation. No publicly held corporation
`
`other than Emerson Electric Co. owns 10 percent or more of the stock of Micro
`
`Motion, Inc. Emerson Electric Co. is a publicly held corporation that has neither a
`
`parent corporation nor a publicly held corporation owning 10 percent or more of its
`
`stock.
`
`4.
`
`The names of all law firms and the partners or associates that
`
`appeared for the party or amicus now represented by me in the trial court or agency
`
`or are expected to appear in this Court, are: Linda E.B. Hansen, Richard S.
`
`Florsheim, Jeffrey N. Costakos, and Kadie M. Jelenchick of Foley & Lardner LLP.
`
`4815-7083-3430.3
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`Dated: November 22, 2013
`
`Respectfully submitted,
`
`FOL Y & L
`NER LLP
`Linda
`.8. Han en
`Richard . Flo
`lei 111
`Jeffrey N.
`ostakos
`Kadie M. Jelenehiek
`Foley & Lardner LLP
`777 East Wisconsin Avenue
`Milwaukee, WI 53202
`Telephone: 414.271.2400
`Facsimile: 414.297.4900
`
`Attorneys for Petitioners Emerson
`Electric Co. and Micro Motion, Inc.
`
`4815-7083·3430.3
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`

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`TABLE OF CONTENTS
`
`Page(s)
`
`TABLE OF CONTENTS........................................................................................... i
`
`TABLE OF AUTHORITIES ................................................................................... iii
`
`I.
`
`II.
`
`III.
`
`IV.
`
`INTRODUCTION ...........................................................................................1
`
`RELIEF SOUGHT...........................................................................................3
`
`ISSUE PRESENTED ......................................................................................3
`
`STATEMENT OF FACTS..............................................................................4
`
`A.
`
`B.
`
`Relevant Procedural Background..........................................................4
`
`Invensys And The Majority Of Its Relevant Evidence Are
`Located Outside The Eastern District Of Texas ...................................5
`
`C. Micro Motion And Its Relevant Evidence Are Located In The
`District Of Colorado..............................................................................8
`
`D.
`
`E.
`
`Emerson Does Not Have Any Relevant Documents Or
`Witnesses In This Case That Justify Venue In The Eastern
`District Of Texas .................................................................................10
`
`Third-Party Witnesses And Documents Are Not Primarily
`Located in the Eastern District of Texas.............................................11
`
`V.
`
`ARGUMENT SUPPORTING ISSUANCE OF THE WRIT........................12
`
`A.
`
`B.
`
`Petitioners Meet The Legal Standards For Issuance Of A Writ
`of Mandamus.......................................................................................14
`
`The District Court Clearly Abused Its Discretion By Denying
`Petitioners’ Motion To Transfer..........................................................16
`
`1.
`
`2.
`
`Petitioners presented facts clearly sufficient for a transfer.......16
`
`The Volkswagen private interest factors favor transfer to
`the District of Colorado ............................................................17
`
`4815-7083-3430.3
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`i
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`

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`a.
`
`b.
`
`c.
`
`The majority of the most relevant sources of proof
`are in Colorado...............................................................17
`
`Invensys’s third-party witnesses were cherry-
`picked from Texas...........................................................19
`
`Considering all relevant, willing witnesses in this
`case, the District of Colorado is a more convenient
`and less costly forum than the Eastern District of
`Texas ...............................................................................19
`
`3.
`
`The Volkswagen public interest factors favor transfer .............23
`
`a.
`
`b.
`
`Patent cases are resolved more quickly in
`Colorado than in the Eastern District of Texas .............23
`
`Colorado has the strongest local interest in
`resolving this case...........................................................23
`
`C.
`
`The Court Should Issue A Writ Because Petitioners Have No
`Other Means Of Obtaining The Relief Sought ...................................27
`
`VI. CONCLUSION..............................................................................................28
`
`4815-7083-3430.3
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`ii
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`

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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`In re Acer Am. Corp.,
`626 F.3d 1252 (Fed. Cir. 2010) ..............................................................17, 24, 27
`
`Allied Chem. Corp. v. Daiflon, Inc.,
`449 U.S. 33 (1980)..............................................................................................14
`
`In re Calmar, Inc.,
`854 F.2d 461 (Fed. Cir. 1988) ............................................................................14
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009) ..................................... 12, 15, 17, 20, 23, 27, 28
`
`In re Hoffman-La Roche,
`587 F.3d 1333 (Fed. Cir. 2009) ....................................................................24, 25
`
`Mallard v. U.S. Dist. Court for S. Dist. of Iowa,
`490 U.S. 296 (1989)............................................................................................14
`
`In re Nintendo Co.,
`589 Fed 1194 (Fed. Cir. 2009)......................................................................12, 17
`
`Storage Tech. Corp. v. Cisco Sys., Inc.,
`329 F.3d 823 (Fed. Cir. 2003) ............................................................................14
`
`In re TOA Techs., Inc.,
`No. Misc. Docket 153, 2013 U.S. App. LEXIS 20226 (Fed. Cir.
`Oct. 3, 2013) (unpublished)................................................................................27
`
`In re TS Tech,
`551 F.3d 1315 (Fed. Cir. 2008) ....................................................................15, 28
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) ........................................................................15, 20
`
`4815-7083-3430.3
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`iii
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`

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`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) (en banc)......................................14, 15, 17, 19, 28
`
`Statutes
`
`28 U.S.C. § 1404(a) .................................................................................3, 14, 19, 28
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`4815-7083-3430.3
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`I.
`
`INTRODUCTION
`
`The United States District Court for the Eastern District of Texas has
`
`become a favored plaintiffs’ forum for patent infringement cases that have little, if
`
`any, connection to that District. This is just such a case. This case is venued in the
`
`Eastern District of Texas even though:
`
` none of the parties are incorporated or based in the Eastern District of
`
`Texas,
`
` none of the inventors of any of the patents-in-suit are located in the
`
`Eastern District of Texas, and
`
` none of the engineers who designed the accused products are located in
`
`the Eastern District of Texas.
`
`In short, there is no reason – other than the Eastern District’s reputation for being
`
`plaintiff-friendly – for this case to be in the Eastern District of Texas. Because of
`
`this, and consistent with the jurisprudence of this Court and the Fifth Circuit,
`
`Petitioners Emerson Electric Co. (“Emerson”) and Micro Motion, Inc. (“Micro
`
`Motion”) seek mandamus to transfer this case to an appropriate venue – the
`
`District of Colorado.
`
`Plaintiff
`
`Invensys Systems,
`
`Inc.
`
`(“Invensys”), a Massachusetts
`
`corporation, sued Micro Motion, a Colorado corporation, and its parent, Emerson,
`
`a Missouri corporation, in the Eastern District of Texas for infringement of seven
`1
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`patents related to particular operations of Coriolis flowmeters.1
`
`Invensys has
`
`levied identical infringement allegations against both Micro Motion and Emerson,
`
`even though Emerson does not make, use, offer to sell, sell, import, or repair any
`
`product capable of infringing the Invensys patents-in-suit. Emerson appears to
`
`have been made a defendant in this lawsuit solely because it is the parent company
`
`of Micro Motion.2
`
`The Eastern District of Texas is not the home forum of any party in
`
`this suit and has no meaningful connection to this case. In denying the Motion to
`
`Transfer Venue filed by Micro Motion and Emerson, the district court sent a strong
`
`message – that any company that does business on a nationwide basis can be
`
`forced to defend itself against patent infringement charges in the Eastern District of
`
`Texas, regardless of the insignificance of its ties with the district.
`
`1 Digital Coriolis flowmeters provide precise measurements of the mass flow rate
`of fluids. PA1, 31, 239. Coriolis flowmeters are used in a variety of applications
`across many industries, including the chemical, food and beverage, oil and gas,
`marine, power, and life sciences industries. PA1, 31, 50, 169, 1325.
`2 Emerson moved for summary judgment of non-infringement, seeking a dismissal
`from this case. PA191-235. The facts are without dispute. Micro Motion is a
`separate corporation that is not controlled by Emerson. PA164-66, 168-70.
`Simply because Emerson is the parent company of Micro Motion, without more,
`does
`not mean Emerson
`is
`liable
`for
`alleged
`patent
`infringement.
`Notwithstanding its pending motion for summary judgment, Emerson joined in
`Micro Motion’s motion to transfer venue to the District of Colorado. PA160-70.
`2
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`4815-7083-3430.3
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`II.
`
`RELIEF SOUGHT
`
`Petitioners request a writ of mandamus from this Court to vacate the
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`district court’s September 30, 2012 Order denying Petitioners’ motion to transfer,
`
`PA1-11, and to order this action’s transfer to the United States District Court for
`
`the District of Colorado.
`
`III.
`
`ISSUE PRESENTED
`
`Whether this Court should direct the district court to transfer this case
`
`pursuant
`
`to 28 U.S.C. § 1404(a) where the district court clearly abused its
`
`discretion by misapplying the undisputed facts under Fifth Circuit
`
`law and
`
`improperly weighing the Volkswagen private and public interest factors by
`
`
`
`
`
`
`
`
`
`ignoring the concentration of Micro Motion’s evidence
`and witnesses in Colorado compared to the near-absence
`of evidence and witnesses in the Eastern District of
`Texas;
`
`relying on the identification of two purported Micro
`Motion customers in the Eastern District of Texas as
`subject to compulsory process while ignoring that Micro
`Motion’s other customers nationwide are not amenable to
`process in the Eastern District of Texas;
`
`ignoring that the District of Colorado resolves patent
`cases more quickly than the Eastern District of Texas;
`and
`
`comparing party “ties” to each district instead of the
`actual local interests and connections giving rise to this
`case, and in doing so, exaggerating the significance of the
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`4815-7083-3430.3
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`oil and gas industry and the contacts of non-parties with
`the Eastern District of Texas.
`
`IV.
`
`STATEMENT OF FACTS
`
`A.
`
`Relevant Procedural Background
`
`Invensys filed this patent litigation action on October 22, 2012, in the
`
`Eastern District of Texas. PA236-622.
`
`Initially, Invensys accused Petitioners of
`
`infringing U.S. Patent Nos. 7,124,646; 7,136,761; 6,311,136; and 7,505,854.
`
`PA236.
`
`Invensys subsequently amended its complaint
`
`to add allegations of
`
`infringement of three additional patents: U.S. Patent Nos. 6,754,594; 7,571,062;
`
`and 8,000,906.3 PA623.
`
`On January 10, 2013, Micro Motion moved to transfer this case to the
`
`District of Colorado. PA12-26. Emerson joined the motion on February 21, 2013.
`
`PA160-70.
`
`Invensys opposed the motion on February 11, 2013. PA30-45.
`
`Petitioners replied on February 21, 2013. PA171-85.
`
`Invensys then filed a sur-
`
`reply on February 27, 2013. PA186-90. On September 30, 2013, the district court
`
`denied the motion to transfer. PA1-11.
`
`3 U.S. Patent Nos. 7,124,646; 7,136,761; 6,311,136; 7,505,854; 6,754,594;
`7,571,062; and 8,000,906 are referred to throughout the Petition as the “Invensys
`patents-in-suit.”
`
`4
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`B.
`
`Invensys And The Majority Of Its Relevant Evidence Are Located
`Outside The Eastern District Of Texas
`
`Invensys is a Massachusetts corporation with about 8,000 employees.
`
`PA14. The Invensys patents-in-suit identify the assignee as Invensys Systems Inc.
`
`in Foxboro, Massachusetts. PA649, 770, 873, 977, 1017, 1119, 1223. A corporate
`
`office in the Southern District of Texas (Houston) is identified as its principal place
`
`of business. PA623.
`
`The vast majority of Invensys’s evidence is located outside of the
`
`Eastern District of Texas. None of the named inventors are located in or near the
`
`Eastern District of Texas. Invensys does not dispute that all but one of the named
`
`inventors of the Invensys patents-in-suit – Manus Henry, Maria Jesus De La
`
`Fuente, David Clarke, and Mayela Zamora – conceived of the claimed inventions
`
`while affiliated with the University of Oxford, in Oxford, England. PA14-15.
`
`Dr. Henry is the director of the University of Oxford Invensys
`
`University Technology Centre (“UTC”), located in Oxford, England. PA14. The
`
`other named inventors are located outside of the Eastern District of Texas. PA14,
`
`19. Ms. Zamora and Mr. Clarke are identified as living in Oxford, England, as is
`
`Dr. Henry. PA770, 873, 977, 1017, 1119, 1223. Ms. De La Fuente is listed as
`
`currently living in Spain, PA649, while Mr. Vignos is identified as living in
`
`Massachusetts. PA770, 873, 1017, 1119, 1223. In addition, the patent prosecution
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`4815-7083-3430.3
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`counsel for the Invensys patents-in-suit – Fish & Richardson PC – are located
`
`outside of and do not have offices in the Eastern District of Texas. PA649, 770,
`
`873, 977, 1017, 1119, 1223.
`
`Other potential Invensys witnesses also reside outside of the Eastern
`
`District of Texas. Witnesses knowledgeable about the design and manufacture of
`
`the Invensys Coriolis flowmeters, which allegedly practice the claimed inventions,
`
`as well as witnesses knowledgeable about the sales and marketing and engineering
`
`support for sales and marketing of these Coriolis flowmeters, are located in
`
`Foxboro, Massachusetts. PA41. The Foxboro facility also employs personnel that
`
`handles the business analysis of electronic financial information. PA41.
`
`Invensys does have an office with 60 employees in Plano, which is in
`
`the Eastern District of Texas. PA31, 623. Carefully avoiding any representation
`
`that it will actually call them to testify, Invensys named as potential witnesses
`
`three sales and marketing employees from Texas. PA40-41. But none of these
`
`“potential” witnesses are actually located in the Eastern District of Texas. PA40-
`
`41. Invensys contends that these witnesses – differentiated only by seniority – may
`
`testify about “[s]ales and marketing of
`
`Invensys’s Coriolis flowmeters to
`
`customers.” PA40-41.
`
`Invensys did not claim that their knowledge differed from
`
`that of its sales and marketing personnel located in Foxboro, Massachusetts.
`
`PA40-41.
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`4815-7083-3430.3
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`Invensys
`
`took
`
`a
`
`similar
`
`tack with
`
`its
`
`potential witnesses
`
`knowledgeable about
`
`Invensys’s “financial
`
`information.”
`
`PA40.
`
`Invensys
`
`identified three employees with varying levels of seniority located in Plano, Texas,
`
`who may testify to identical subject matter. PA40-41. Given the great overlap in
`
`the areas of testimony, and the fact that the design and sales of Invensys’s Coriolis
`
`flowmeters are based in Massachusetts, it seems unlikely that any or all of these
`
`witnesses are necessary.
`
`Invensys admits that its relevant documents are located outside of
`
`Texas. PA51. Invensys does not contest that the work allegedly giving rise to the
`
`claimed inventions happened at
`
`the University of Oxford, and the alleged
`
`conception,
`
`reduction to practice, and related documentation regarding the
`
`Invensys patents-in-suit is located in Oxford.4
`
`PA14-15, 649, 770, 873, 977,
`
`1017, 1119, 1223.
`
`In addition, because Invensys’s design and manufacturing
`
`facilities for its Coriolis flowmeters are located in Foxboro, Massachusetts,
`
`relevant documentation related to the design and manufacture of these devices is
`
`located in Massachusetts. PA41, 51. The Massachusetts facility also houses sales
`
`and marketing information related to Invensys’s Coriolis flowmeters as well as
`
`4 According to the UTC’s website, the first instrument studied at the UTC was the
`Coriolis flowmeter, also making it likely that the alleged conception, reduction to
`practice, and related documentation regarding the patents-in-suit is located in
`Oxford. PA14-15.
`
`7
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`4815-7083-3430.3
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`engineering support for the same. PA41, 51. While the Plano facility may have
`
`access to Invensys financial information, the data is maintained electronically.
`
`PA41, 51.
`
`Plainly stated, the key witnesses and documents are located outside of
`
`the State of Texas in general, and the Eastern District of Texas in particular.
`
`C. Micro Motion And Its Relevant Evidence Are Located In The
`District Of Colorado
`
`Micro Motion is a Colorado corporation that has been in the business
`
`of designing, manufacturing, and selling Coriolis flow and density measurement
`
`devices for more than 30 years. PA28-29, 168-69. Micro Motion is headquartered
`
`in Boulder, Colorado. PA28. Micro Motion has been an indirect wholly-owned
`
`subsidiary of Emerson since 1984, when Emerson acquired 100 percent of Micro
`
`Motion’s stock. PA168. Micro Motion is the only Emerson subsidiary that
`
`designs, manufactures, or sells Coriolis meters. PA165, 169.
`
`Invensys alleges that Petitioners Micro Motion and Emerson infringe
`
`the seven Invensys patents-in-suit. PA623-48. The accused products are identified
`
`as Micro Motion® Elite® Coriolis Meters containing a Micro Motion transmitter
`
`with a Micro Motion enhanced core processor and substantially similar
`
`components. PA627, 629-30, 632-33, 635-36, 638-41, 643-44.
`
`Invensys makes
`
`identical allegations against both Micro Motion and Emerson. PA627-46. Of the
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`4815-7083-3430.3
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`two Petitioners, only Micro Motion designs, manufactures, and sells Coriolis
`
`flowmeters; Emerson does not. PA165, 169-70.
`
`Micro Motion controls all aspects of its Coriolis meter products,
`
`including their design, development, manufacture, and sale. PA165, 169-70.
`
`Micro Motion also employs the engineers who conduct research and design
`
`associated with its Coriolis meters. PA165, 169. Micro Motion witnesses most
`
`knowledgeable about the design and development of its Coriolis flowmeters,
`
`including Richard Maginnis and Craig McAnally, reside in Boulder, Colorado.
`
`PA28-29. Not a single Micro Motion engineer or any other current or former
`
`Micro Motion employee that worked on the accused Micro Motion Coriolis
`
`flowmeters is located in Texas. PA28-29.
`
`Micro Motion’s only domestic Coriolis flowmeter manufacturing
`
`facility is also located in Boulder, where witnesses related to manufacturing are
`
`similarly located. PA28-29.
`
`In addition, Micro Motion’s witnesses related to
`
`marketing, pricing, and sales of the accused Coriolis flowmeters are in Colorado
`
`and work out of the Boulder facility. PA28-29. While Micro Motion sells
`
`products nationwide, including in Texas, Micro Motion does not own or lease any
`
`offices, facilities, or land in the state. PA28-29, 169. Micro Motion’s only
`
`presence in Texas consists of routine sales and service personnel who know
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`4815-7083-3430.3
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`nothing about the particular facts of this case. PA28-29. Consequently, these
`
`individuals are unlikely to be called as witnesses.
`
`D.
`
`Emerson Does Not Have Any Relevant Documents Or Witnesses
`In This Case That Justify Venue In The Eastern District Of Texas
`
`Emerson is a Missouri corporation with its principal place of business
`
`in St. Louis, Missouri. PA164. Emerson is a diversified global manufacturing and
`
`technology company offering a wide range of products and services in the
`
`industrial, commercial, and consumer markets through its five business platforms:
`
`(i) Emerson Process Management (“EPM”), (ii) Emerson Industrial Automation,
`
`(iii) Emerson Network Power, (iv) Emerson Climate Technologies, and (v)
`
`Emerson Commercial and Residential Solutions. PA164. Micro Motion, an
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`Emerson subsidiary, is part of the EPM business platform. PA165, 170.
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`Emerson does not make, use, offer for sale, sell, import, or repair the
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`accused Micro Motion Coriolis flowmeters. PA165, 195, 201-03. Emerson has
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`not and does not determine how Micro Motion’s products operate or what features
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`and functions they have.
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`PA165-66, 169-70. Micro Motion makes all
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`the
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`decisions regarding the features and functions that are incorporated into its
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`products, including Coriolis flowmeters. PA165-66, 169-70. Although Micro
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`Motion reports to the managers of the EPM business platform, Emerson has not
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`and does not determine the design and development of Micro Motion’s products.
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`4815-7083-3430.3
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`PA165-66, 170. Emerson also does not control or direct manufacturing or sales of
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`Micro Motion’s products, including the accused Coriolis flowmeters. PA165-66,
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`169-70.
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`Emerson’s relevant documents, if any, are far less relevant to this
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`litigation than those of Micro Motion. Emerson does not have any relevant
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`witnesses. PA165-66, 169-70. Emerson does not have any relevant contacts with
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`the Eastern District of Texas for the purposes of this case. PA165-66, 169-70.
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`Emerson is not a proper party and has moved to dismiss Invensys’s infringement
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`allegations against
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`it.
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`PA191-235. Notwithstanding its motion to dismiss,
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`Emerson joined Micro Motion’s motion to transfer to the District of Colorado.
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`PA160-70.
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`E.
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`Third-Party Witnesses And Documents Are Not Primarily
`Located in the Eastern District of Texas5
`Both Micro Motion and Invensys sell their Coriolis flowmeters to
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`customers in various industries across the country. For this reason, the Eastern
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`District of Texas is not the home forum for a significant portion of third-party
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`5 The District of Colorado is home to third-party witnesses relevant to Micro
`Motion’s counterclaims of patent infringement against Invensys. Following
`completion of the briefing on Petitioners’ motion to transfer, Micro Motion
`asserted allegations against Invensys that if infringed U.S. Patent Nos. 5,555,190
`and 6,505,131, which are drawn to Coriolis flowmeters. PA1338, 1340-42.
`Inventors of these Micro Motion patents were, and some still are, located in
`Boulder, Colorado. PA1348, 1395.
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`4815-7083-3430.3
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`witnesses or documents.
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`Invensys points to two customers to whom it claims to
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`have lost sales in the Eastern District of Texas. PA38, 117.
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`Invensys also
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`identifies two customers elsewhere in Texas to whom it claims to have lost sales.
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`PA38, 117.
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`Invensys ignores the thousands of potential customer witnesses
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`nationwide, outside the Eastern District of Texas. PA169, 172, 175.
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`Invensys
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`does not contend that any relevant third-party documents are located in Texas, let
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`alone the Eastern District of Texas.
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`V. ARGUMENT SUPPORTING ISSUANCE OF THE WRIT
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`This Court has repeatedly held “that
`
`in a case featuring most
`
`witnesses and evidence closer to the transferee venue with few or no convenience
`
`factors favoring the venue chosen by the plaintiff, the trial court should grant a
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`motion to transfer.” In re Nintendo Co., 589 Fed 1194, 1198 (Fed. Cir. 2009).
`
`This Court has also rejected the notion that the Eastern District of Texas is a
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`convenient “central location” when parties and witnesses can be found in multiple
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`locations around the country or even the world. See In re Genentech, Inc., 566
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`F.3d 1338, 1344 (Fed. Cir. 2009); In re Nintendo Co., 589 F.3d at 1199-200.
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`Mandamus is warranted because this is a Colorado-centric dispute and
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`the district court’s contrary conclusion to keep this matter venued in the Eastern
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`District of Texas was a clear legal error. The facts giving rise to this litigation
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`stem from the conduct and activities of Micro Motion’s employees and facilities in
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`Colorado.
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`Substantially all of Micro Motion’s witnesses and evidence are
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`concentrated within the District of Colorado.
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`Invensys’s sources of proof, on the other hand, are scattered across
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`multiple districts and three continents. The alleged inventions were conceived in
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`Oxford, England.
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`Inventors, prosecuting attorneys, the listed patent owner, and
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`Invensys’s identified witnesses knowledgeable about
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`the design, engineering,
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`manufacture, marketing, and sale of its Coriolis flowmeters are similarly located
`
`outside the Eastern District of Texas.
`
`Invensys’s exaggeration of the number of potential witnesses and the
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`significance of the accused products in the oil and gas industry is a transparent
`
`attempt to manipulate venue. This case is about Coriolis flowmeters, which
`
`Invensys admits are used in a variety of applications and heavily relied upon in
`
`many industries, only one of which is the oil and gas industry. The district court
`
`clearly abused its discretion and reached an erroneous result by relying on these
`
`manipulations. Under the proper legal standards, this case should be transferred to
`
`the District of Colorado. The District of Colorado is clearly more convenient than
`
`the Eastern District of Texas.
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`4815-7083-3430.3
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`A.
`
`Petitioners Meet The Legal Standards For Issuance Of A Writ of
`Mandamus
`
`A writ of mandamus is available to correct a clear abuse of discretion
`
`or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed. Cir.
`
`1988). Petitioners seeking a writ bear the burden of proving that they have no
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`other means of obtaining the relief desired, Mallard v. U.S. Dist. Court for S. Dist.
`
`of Iowa, 490 U.S. 296, 309 (1989), and that the right to issuance of the writ is
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`“clear and indisputable.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35
`
`(1980). Because this Petition relates to a motion to transfer that does not involve
`
`issues of substantive patent law, this Court applies the laws of the regional circuit
`
`in which the district court sits, which, in this case, is the Fifth Circuit. Storage
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`Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823, 836 (Fed. Cir. 2003).
`
`Here, Petitioners make the necessary showing to warrant issuing a
`
`writ. The district court’s denial of their motion to transfer was a “clear” abuse of
`
`discretion that has resulted in a “patently erroneous result.” In re Volkswagen of
`
`Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc) (“Volkswagen II”).
`
`Pursuant to § 1404(a), “[f]or the convenience of parties and witnesses,
`
`in the interest of justice, a district court may transfer any civil action to any other
`
`district court or division where it might have been brought.” 28 U.S.C. § 1404(a).
`
`“A motion to transfer venue should be granted upon a showing that the transferee
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`4815-7083-3430.3
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`venue ‘is clearly more convenient’ than the venue chosen by the plaintiff.” In re
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`Genentech, 566 F.3d at 1342 (Fed. Cir. 2009) (quoting Volkswagen II, 545 F.3d at
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`304, 315 (5th Cir. 2008)).
`
`The district court here clearly abused its discretion in its multi-factor
`
`balancing of the private and public interest factors set forth by the Fifth Circuit in
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`Volkswagen I. See In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)
`
`(“Volkswagen I”). The Volkswagen 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 a trial easy, expeditious, and
`
`inexpensive.
`
`In re TS Tech, 551 F.3d 1315, 1319 (Fed. Cir. 2008) (quoting
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`Volkswagen II, 545 F.3d at 315). The Volkswagen 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
`
`conflicts of law or in the application of foreign law. Id.
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`With the exception of the private interest factor addressing the
`
`availability of compulsory process to secure non-party customer witnesses, the
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`district court concluded that the other seven factors are “neutral.” PA5-11.
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`In
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`reac