Case: 20-135 Document: 2-1 Page: 1 Filed: 06/16/2020
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`Miscellaneous Docket No. ___
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`IN THE
`United States Court of Appeals for the Federal Circuit
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`
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`IN RE APPLE INC.,
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`Petitioner.
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`
`
`On Petition for Writ of Mandamus to the
`United States District Court for the
`Western District of Texas
`No. 6:19-cv-00532-ADA, Hon. Alan D Albright
`
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`APPLE INC.’S PETITION FOR
`WRIT OF MANDAMUS
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`
`
`John M. Guaragna
`DLA PIPER
`401 Congress Avenue
`Suite 2500
`Austin, TX 78701
`
`Abigail Colella
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`51 West 52nd Street
`New York, NY 10019
`
`
`Melanie L. Bostwick
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`1152 15th Street NW
`Washington, DC 20005
`(202) 339-8400
`
`Melanie R. Hallums
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`2121 Main Street
`Wheeling, WV 26003
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`Counsel for Petitioner
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`
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`Miscellaneous Docket No. ___
`
`
`IN THE
`United States Court of Appeals for the Federal Circuit
`
`
`
`IN RE APPLE INC.,
`
`Petitioner.
`
`
`
`On Petition for Writ of Mandamus to the
`United States District Court for the
`Western District of Texas
`No. 6:19-cv-00532-ADA, Hon. Alan D Albright
`
`
`APPLE INC.’S PETITION FOR
`WRIT OF MANDAMUS
`
`
`
`John M. Guaragna
`DLA PIPER
`401 Congress Avenue
`Suite 2500
`Austin, TX 78701
`
`Abigail Colella
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`51 West 52nd Street
`New York, NY 10019
`
`
`Melanie L. Bostwick
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`1152 15th Street NW
`Washington, DC 20005
`(202) 339-8400
`
`Melanie R. Hallums
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`2121 Main Street
`Wheeling, WV 26003
`
`Counsel for Petitioner
`
`
`
`
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`Case: 20-135 Document: 2-1 Page: 2 Filed: 06/16/2020
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`FORM 9. Certificate of Interest
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` Form 9
` Rev. 10/17
`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
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`In re Apple Inc.
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`Case No.
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`CERTIFICATE OF INTEREST
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`Counsel for the:
`(cid:133) (petitioner) (cid:133) (appellant) (cid:133) (respondent) (cid:133) (appellee) (cid:133) (amicus) (cid:133) (name of party)
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`Apple Inc.
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`certifies the following (use “None” if applicable; use extra sheets if necessary):
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`1. Full Name of Party
`Represented by me
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`Apple Inc.
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`2. Name of Real Party in interest
`(Please only include any real party
`in interest NOT identified in
`Question 3) represented by me is:
`Apple Inc.
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`3. Parent corporations and
`publicly held companies
` that own 10% or more of
`stock in the party
`None
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`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 (and who have not
`or will not enter an appearance in this case) are:
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`DLA Piper LLP: Brian K. Erickson, Christine K. Corbett, Erik R. Fuehrer, Larissa Bifano, Mark D.
`Fowler, Michael Van Handel, Summer Torrez
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`Orrick, Herrington & Sutcliffe LLP: Jeffrey T. Quilici
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`Case: 20-135 Document: 2-1 Page: 3 Filed: 06/16/2020
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`FORM 9. Certificate of Interest
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` Form 9
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`5. The title and number of any case known to counsel to be pending in this or any other court or agency
`that will directly affect or be directly affected by this court’s decision in the pending appeal. See Fed. Cir.
`R. 47. 4(a)(5) and 47.5(b). (The parties should attach continuation pages as necessary).
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`None
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`6/15/2020
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`Please Note: All questions must be answered
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`/s/ Melanie L. Bostwick
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`Signature of counsel
`Melanie L. Bostwick
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`Printed name of counsel
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`ii
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`Case: 20-135 Document: 2-1 Page: 4 Filed: 06/16/2020
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`TABLE OF CONTENTS
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`Page
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`CERTIFICATE OF INTEREST .................................................................. i
`TABLE OF AUTHORITIES ....................................................................... v
`INTRODUCTION ....................................................................................... 1
`RELIEF SOUGHT ...................................................................................... 3
`ISSUE PRESENTED ................................................................................. 3
`FACTUAL BACKGROUND AND PROCEDURAL HISTORY ................ 3
`In 2017 and 2018, Texas Courts Transfer Twenty-One Uniloc
`Cases Against Apple to the Northern District of
`California. ................................................................................. 3
`After Voluntarily Dismissing the Previous Version of This
`Suit to Avoid Transfer, Uniloc Refiles in the Waco
`Division of the Western District of Texas. .............................. 5
`Apple Seeks Transfer to the Northern District of California. ......... 6
`The District Court Denies Apple’s Transfer Motion. ....................... 9
`REASONS FOR ISSUING THE WRIT ................................................... 10
`I. Mandamus Is Warranted Because Transfer Under
`§ 1404(a) Has Become Effectively Unavailable In The
`Waco Division Of The Western District Of Texas,
`Allowing Unabashed Forum- And Judge-Shopping. ............ 12
`II. Any Analysis Of The § 1404(a) Factors That Leads To
`A Denial Of Transfer Would Be Patently Erroneous. .......... 17
`A.
`The private-interest factors all favor transfer. ............ 18
`1.
`All likely trial witnesses are in California and
`none are in Texas. ................................................ 18
`Plaintiff’s choice of forum is not a distinct
`factor. .................................................................... 25
`Compulsory process for critical witnesses is
`available only in California. ................................ 26
`
`2.
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`3.
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`iii
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`Case: 20-135 Document: 2-1 Page: 5 Filed: 06/16/2020
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`4.
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`2.
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`B.
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`All relevant sources of proof are in or around
`the Northern District of California. .................... 29
`Judicial economy strongly favors transfer. ........ 32
`5.
`The public-interest factors clearly favor transfer. ...... 34
`1.
`The interest of the district where the accused
`technology was designed and developed is self-
`evidently stronger than that of a district with
`no tie to this case. ................................................ 34
`The district court’s speculation about its
`untested trial plan cannot outweigh the
`factors heavily favoring transfer. ........................ 37
`CONCLUSION ......................................................................................... 40
`CERTIFICATE OF SERVICE
`CERTIFICATE OF COMPLIANCE
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`iv
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`Case: 20-135 Document: 2-1 Page: 6 Filed: 06/16/2020
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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`In re Acer Am. Corp.,
`626 F.3d 1252 (Fed. Cir. 2010) ................................................ 23, 34, 35
`In re Apple, Inc.,
`581 F. App’x 886 (Fed. Cir. 2014) .................................................. 23, 24
`Atl. Marine Constr. Co. v. U.S. Dist. Ct.,
`571 U.S. 49 (2013) .......................................................................... 25, 34
`Cheney v. U.S. Dist. Ct.,
`542 U.S. 367 (2004) .............................................................................. 10
`DataQuill, Ltd. v. Apple Inc.,
`No. 13-CA-706-SS, 2014 WL 2722201 (W.D. Tex. June 13,
`2014) ..................................................................................................... 36
`Fintiv, Inc. v. Apple Inc.,
`No. 6:18-cv-00372-ADA, 2019 WL 4743678 (W.D. Tex.
`Sept. 13, 2019) ................................................................................ 13, 29
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009) .................................... 18, 28, 29, 38, 40
`In re Google Inc.,
`No. 2017-107, 2017 WL 977038 (Fed. Cir. Feb. 23, 2017) ............ 18, 33
`Gulf Oil Corp. v. Gilbert,
`330 U.S. 501 (1947) .............................................................................. 32
`In re Hoffmann-La Roche Inc.,
`587 F.3d 1333 (Fed. Cir. 2009) ...................................................... 35, 36
`In re HP Inc.,
`No. 2018-149, 2018 WL 4692486 (Fed. Cir. Sept. 25, 2018) ........ 18, 28
`
`v
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`Case: 20-135 Document: 2-1 Page: 7 Filed: 06/16/2020
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`Icon Health & Fitness, Inc. v. Strava, Inc.,
`849 F.3d 1034 (Fed. Cir. 2017) ............................................................ 28
`In re Microsoft Corp.,
`630 F.3d 1361 (Fed. Cir. 2011) ............................................................ 16
`In re Morgan Stanley,
`417 F. App’x 947 (Fed. Cir. 2011) ........................................................ 40
`In re Nintendo Co.,
`589 F.3d 1194 (Fed. Cir. 2009) ...................................................... 11, 17
`In re Radmax, Ltd.,
`720 F.3d 285 (5th Cir. 2013) ................................................................ 11
`In re Telebrands Corp.,
`773 F. App’x 600 (Fed. Cir. 2016) ........................................................ 35
`In re Toyota Motor Corp.,
`747 F.3d 1338 (Fed. Cir. 2014) ............................................................ 29
`In re TS Tech USA Corp.,
`551 F.3d 1315 (Fed. Cir. 2008) .................................... 10, 24, 25, 26, 31
`Uniloc 2017 LLC v. Google LLC,
`No. 2:18-cv-00504-JRG-RSP, 2020 WL 3064460 (E.D. Tex.
`June 8, 2020) ........................................................................................ 27
`Uniloc USA, Inc. v. Apple Inc.,
`No. A-18-CV-990-LY, 2019 WL 2066121 (W.D. Tex. Apr. 8,
`2019) ............................................................................................... 13, 18
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) .......................................................... 23, 24
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) ................ 10, 11, 17, 25, 26, 31, 34, 37, 38
`Statutes
`28 U.S.C. § 1391........................................................................................ 26
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`vi
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`Case: 20-135 Document: 2-1 Page: 8 Filed: 06/16/2020
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`28 U.S.C. § 1404(a) ........................................................................... passim
`Other Authorities
`Jonas Anderson, Judge Shopping in the Eastern District of
`Texas, 48 Loy. U. Chi. L.J. 539 (2016) ................................................ 16
`Alex Botoman, Note, Divisional Judge-Shopping, 49 Colum.
`Hum. Rts. L. Rev. 297 (2018) .............................................................. 14
`Michelle Casady, Waco’s New Judge Primes District for Patent
`Growth (Feb. 12, 2019), https://tinyurl.com/Law360Waco ................. 15
`Mark Curriden, “User friendly” approach means Texas has
`new high-stakes patent litigation hotspot, Dallas Bus. J.,
`2019 WLNR 35169859 (Nov. 21, 2019) ............................................... 15
`Order Denying Defendant Apple’s Motion to Transfer Venue
`Under 28 U.S.C. § 1404(a), STC.UNM v. Apple Inc., No.
`1:20-cv-00351-ADA (W.D. Tex. Apr. 1, 2020), ECF No. 59 ................ 13
`Order Governing Proceedings – Patent Case, U.S. District
`Court for the Western District of Texas (Feb. 26, 2020),
`https://tinyurl.com/ybcamrwe .............................................................. 37
`Petition for Writ of Mandamus, In re Apple Inc., No. 20-104
`(Fed. Cir. Oct. 16, 2019), ECF No. 2 ................................................... 13
`Petition for Writ of Mandamus, In re Apple Inc., No. 20-127
`(Fed. Cir. May 14, 2020), ECF No. 2-1 ................................................ 13
`Q1 2020 Patent Dispute Report, Unified Patents (Mar. 31,
`2020), https://tinyurl.com/y7md9go5 ................................................... 39
`Uniloc 2017 LLC v. Apple Inc.,
`No. 19-cv-1905 (N.D. Cal. Feb. 6, 2020), ECF No. 97, 99 ................... 33
`
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`vii
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`INTRODUCTION
`Once again, a non-Texas plaintiff has sued Apple for patent
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`infringement in the Waco Division of the Western District of Texas in a
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`case having no connections to that venue. And once again, the district
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`court has denied Apple’s request to transfer under 28 U.S.C. § 1404(a)
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`to the forum that serves “the convenience of parties and witnesses” and
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`“the interest of justice”—the Northern District of California.
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`The case for transfer is especially compelling here. It’s not just
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`that Apple is headquartered in the Northern District of California,
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`where every employee knowledgeable about the accused technology
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`(and every relevant document) is located. Nor is it just that Uniloc
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`itself has substantial California connections, and that even its own
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`witnesses are located there. It’s also that, but for Uniloc’s strategic
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`behavior, this case already would have been transferred to the Northern
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`District of California.
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`This is one of 24 actions involving 35 patents that Uniloc has filed
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`against Apple in the Eastern or Western District of Texas. Judge
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`Gilstrap and Judge Yeakel transferred 21 of those cases, finding that
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`Apple had shown the Northern District of California to be clearly more
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`convenient and, in the case of Judge Gilstrap, that Uniloc had
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`misrepresented its Texas connections for venue purposes. Two cases
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`remain in the Eastern District because they are stayed pending appeals
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`from inter partes review proceedings.
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`This is the twenty-fourth case. It was originally pending before
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`Judge Yeakel, but Uniloc voluntarily dismissed it during transfer
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`briefing, then refiled it the following year in the Waco Division, where it
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`was assigned to Judge Albright. Apple moved to transfer. And Uniloc
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`(despite receiving additional venue discovery) couldn’t come up with any
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`valid reason to keep the case in Texas.
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`But immediately after hearing the parties’ arguments, and
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`without offering any explanation, Judge Albright stated he was denying
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`transfer and promised to issue a written decision soon. Apple has
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`waited over a month for that decision, and none has issued (even as the
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`district court has held hearings and issued other written rulings in the
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`case). There is simply no rational basis for refusing to transfer this case
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`to the Northern District of California to be litigated with the rest of the
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`parties’ ongoing disputes and in a forum convenient for every expected
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`party and non-party witness. The Court should grant mandamus.
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`2
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`RELIEF SOUGHT
`Apple respectfully requests that the Court grant this petition for a
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`writ of mandamus, vacate the district court’s decision to deny Apple’s
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`transfer motion, and remand the case with instructions to transfer this
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`action to the United States District Court for the Northern District of
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`California.
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`ISSUE PRESENTED
`Whether the district court clearly abused its discretion in refusing
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`to transfer this case to the Northern District of California, where the
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`clear weight of the § 1404(a) convenience factors points and 21 other
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`cases between the same parties are currently pending after being
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`transferred from Texas.
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`FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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`In 2017 and 2018, Texas Courts Transfer Twenty-One Uniloc
`Cases Against Apple to the Northern District of California.
`Uniloc 2017 LLC is a Delaware company with no connection to
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`Waco or the Western District of Texas. It is part of a web of Uniloc
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`entities, including Uniloc Luxembourg and Uniloc USA. Appx88.
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`This is one of 24 patent-infringement cases that Uniloc entities
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`filed against Apple, all in the Eastern or Western District of Texas.
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`3
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`Over Uniloc’s objections, all of the other cases that were not stayed or
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`voluntarily dismissed—21 total—were transferred to the Northern
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`District of California under § 1404(a) and are pending there. See
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`Appx85-87.
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`Uniloc’s first dozen cases were filed between 2016 and 2017 in the
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`Eastern District of Texas. Judge Gilstrap transferred ten of those cases
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`to the Northern District of California, concluding that it would be the
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`more convenient venue for disputes between the two parties under Fifth
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`Circuit precedent. Appx144. Notably, after seeing the results of venue
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`discovery, Judge Gilstrap found that Uniloc had repeatedly made
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`“contradictory representations” about its Texas presence and, in fact,
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`had substantial connections to California. Appx138-139. The two other
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`cases before Judge Gilstrap were stayed pending inter partes review
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`and therefore were not included in the transfer. Appx85-87. The
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`Patent Trial and Appeal Board found all asserted claims unpatentable
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`in those proceedings, and the appeals are pending before this Court.
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`See generally Nos. 19-1151, 19-2389 (Fed. Cir.).
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`In 2018, Uniloc filed twelve more cases against Apple, this time in
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`the Western District of Texas. Judge Yeakel transferred eleven of those
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`4
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`cases to the Northern District of California. Appx86-87. Uniloc had
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`ample opportunity to challenge Apple’s representations that all relevant
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`witnesses and documents were located in the Northern District of
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`California—including written discovery, document discovery, and the
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`right to depose up to ten Apple employees. Uniloc could not and did not
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`do so. Appx84.
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`The final case before Judge Yeakel—No. 1:18-cv-00296-LY—
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`asserted the exact same patent and claims at issue here. Uniloc
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`voluntarily dismissed that case during the transfer briefing, thereby
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`escaping transfer. Appx86.
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`After Voluntarily Dismissing the Previous Version of This Suit to
`Avoid Transfer, Uniloc Refiles in the Waco Division of the
`Western District of Texas.
`In September 2019, Uniloc refiled this suit in the Waco Division of
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`the Western District of Texas, where Judge Albright sits as the only
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`district judge. As in the prior version of this case, Uniloc accuses Apple
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`of infringing claims 1-4, 6-8, 10-14, 16-18, and 20-21 of U.S. Patent No.
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`6,467,088, titled “Reconfiguration Manager For Controlling Upgrades of
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`Electronic Devices,” which expired on June 30, 2019. See Appx14-16;
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`Appx24.
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`5
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`According to Uniloc, the ’088 patent “describes in detail and
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`claims in various ways inventions in systems and devices for improved
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`management and control of reconfiguring electronic devices.” Appx15.
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`Uniloc asserts various Apple products that run the iOS or macOS
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`operating systems—including iPhones, iPads, and desktop and
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`notebook computers—infringe the ’088 patent. See Appx15. Notably,
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`these products directly overlap with the products accused in other
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`Uniloc cases that were transferred to California. Appx88. Uniloc’s
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`infringement contentions target the software update functionality in
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`iOS and macOS, “for example, the installation or update of an App
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`Store application on the device.” Appx16.
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`Apple Seeks Transfer to the Northern District of California.
`Because of the strong connections between this case and the
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`Northern District of California, and given the lack of connections to the
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`Western District of Texas, Apple promptly moved to transfer under 28
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`U.S.C. § 1404(a). Appx78-104. Apple also moved to stay all case
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`activity pending a decision on its motion to transfer. Appx166-173. The
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`district court denied the stay. Appx7.
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`Apple supported its transfer motion with documentation and with
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`a sworn declaration from Michael Jaynes, a Senior Finance Manager at
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`Apple. Appx105. That evidence showed that nearly all the sources of
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`proof regarding the accused products and the accused technology are in
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`the Northern District of California. Appx92-94; Appx110-111; Appx115-
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`116; Appx119. Apple also showed that all of the Apple employees likely
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`to be witnesses in this case are located in that district. Appx96-98;
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`Appx116-119; Appx108. And several third-party witnesses would be
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`subject to compulsory process in the Northern District of California as
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`well. Appx95-96; Appx152-154. Finally, Apple demonstrated that the
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`Northern District of California has a strong local interest in this matter
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`because it is the location of Apple’s headquarters, where the accused
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`products were designed and developed, and where all of Apple’s
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`relevant employees are based. Appx101-102; Appx107-108; Appx110-
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`111; Appx115-119.
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`Uniloc opposed. Rather than relying on evidence, however, Uniloc
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`relied on speculation and irrelevant arguments that had already been
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`rejected by courts in the Eastern and Western Districts of Texas. As
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`described in more detail below (at 18-24), Uniloc was unable to identify
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`7
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`any relevant witnesses in the district or show any other connection
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`between the Western District of Texas and this dispute—despite having
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`two rounds of document discovery, two rounds of written discovery,
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`depositions of Austin-based Apple employees in January 2019, and a
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`deposition of Apple’s witness, Mr. Jaynes, in January 2020. Appx84;
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`Appx210. Instead, Uniloc relied on attorney argument and speculation
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`about potential witnesses that have no relevance to the case.
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`For instance, Uniloc suggested that certain Apple employees
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`working in Austin might be trial witnesses; but Apple demonstrated
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`that its employees in Austin do not have any relevant knowledge.
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`Appx99; Appx107-108. Uniloc also relied on the fact that a third-party
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`in Austin physically assembles the Mac Pro desktop computer—but
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`Uniloc failed to show why those manufacturing employees would have
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`any knowledge about the accused software functionality. Appx203. In
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`addition, Uniloc did not (nor could it) dispute that all the likely trial
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`witnesses from both Apple and Uniloc are in California. Appx88-90;
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`Appx95-98; Appx107-108; Appx116-119; Appx204-207.
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`8
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`The District Court Denies Apple’s Transfer Motion.
`The district court conducted a telephonic hearing on the transfer
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`motion on May 12, 2020. Appx10. At the hearing, it discounted
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`arguments about the convenience of party witnesses, even though that
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`is a significant factor in the § 1404(a) analysis, and instead showed
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`deference to Uniloc’s choice of venue, which is not a factor. See
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`Appx250; Appx252. The district court also emphasized that its default
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`scheduling order aims to get cases to trial “in a more expeditious
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`manner” than other districts, and suggested that its docket-
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`management practices distinguish this case from the 21 similar cases in
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`which Judges Gilstrap and Yeakel determined that the Northern
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`District of California is clearly more convenient. Appx245-246.
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`At the end of the hearing, the district court stated without
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`explanation that it would be denying the transfer motion and that it
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`would issue a written order “as soon as we can.” Appx296. Over a
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`month has passed, but the district court’s order has not issued. During
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`that time, the court has held a Markman hearing, issued claim
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`constructions (a few weeks after the hearing), held a discovery hearing,
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`and issued a decision on a protective order (two days after the hearing),
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`but has yet to issue an order explaining its rationale for refusing to
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`transfer. Appx11.
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`Given the rapid progression of this case, Apple cannot wait any
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`longer for a written order before seeking mandamus to prevent the case
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`from moving forward in an inconvenient venue. Under the governing
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`law and based on the facts presented to the district court, there is no
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`rationale for denying transfer that would amount to anything other
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`than a clear abuse of discretion.
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`REASONS FOR ISSUING THE WRIT
`A petitioner seeking mandamus relief must (1) show a “clear and
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`indisputable” right to the writ; (2) have “no other adequate means to
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`attain the relief he desires”; and (3) demonstrate that “the writ is
`
`appropriate under the circumstances.” In re Volkswagen of Am., Inc.,
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`545 F.3d 304, 311 (5th Cir. 2008) (en banc) (“Volkswagen II”) (quoting
`
`Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-81 (2004)).1 The first and
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`third prongs are satisfied where a district court reaches a “patently
`
`
`1 In reviewing issues related to § 1404(a), “this court applies the laws of
`the regional circuit in which the district court sits, in this case the Fifth
`Circuit.” In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir.
`2008).
`
`10
`
`
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`Case: 20-135 Document: 2-1 Page: 19 Filed: 06/16/2020
`
`erroneous result” by relying on clearly erroneous factual findings,
`
`erroneous conclusions of law, or misapplications of law to fact. Id. at
`
`310-12, 318-19. The second prong is necessarily satisfied where a
`
`district court improperly denies transfer under § 1404(a). See id. at
`
`319; see also In re Radmax, Ltd., 720 F.3d 285, 287 n.2 (5th Cir. 2013).
`
`This case meets that high standard. Everyone recognizes that
`
`this case “featur[es] most witnesses and evidence closer to the
`
`transferee venue with few or no convenience factors favoring the venue
`
`chosen by the plaintiff,” which means that “the trial court should grant
`
`a motion to transfer.” In re Nintendo Co., 589 F.3d 1194, 1198 (Fed.
`
`Cir. 2009). But the district court denied Apple’s transfer motion—and
`
`Apple has been waiting more than a month for the district court to
`
`explain why. For the reasons explained below, there is no possible
`
`analysis of the § 1404(a) factors that could support the district court’s
`
`outcome. And the district court’s steadfast refusal to transfer patent
`
`cases out of the Western District of Texas—even when another forum is
`
`unquestionably and significantly more convenient—is inviting plaintiffs
`
`to do exactly what Uniloc did here: intentionally file in a venue that has
`
`no connection to the case but which guarantees assignment to a judge
`
`11
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`
`
`Case: 20-135 Document: 2-1 Page: 20 Filed: 06/16/2020
`
`that the plaintiff views as desirable. That is judge-shopping plain and
`
`simple, and this Court should not permit it to continue.
`
`I. Mandamus Is Warranted Because Transfer Under § 1404(a)
`Has Become Effectively Unavailable In The Waco Division
`Of The Western District Of Texas, Allowing Unabashed
`Forum- And Judge-Shopping.
`This case is part of a trend. In his nearly two years on the bench,
`
`Judge Albright has never granted a § 1404(a) transfer motion that
`
`would send a patent case outside of the Western District of Texas. The
`
`only transfer motions he has granted were for intradistrict transfer to
`
`the Austin Division, where the cases remain on Judge Albright’s docket.
`
`See Appx482.
`
`This track record does not reflect a lack of merit in the transfer
`
`motions the district court has entertained. Apple’s own cases illustrate
`
`the increasing extremity of circumstances in which the court is denying
`
`interdistrict transfer. In each case, the district court has denied
`
`transfer to the Northern District of California even though virtually all
`
`evidence and witnesses are located there. In the first case, the court
`
`inflated the plaintiffs’ Texas presence and deferred to implausible
`
`allegations—contradicted by sworn testimony—suggesting that Apple
`
`and third-party employees in Austin would have relevant information.
`
`12
`
`
`
`Case: 20-135 Document: 2-1 Page: 21 Filed: 06/16/2020
`
`Fintiv, Inc. v. Apple Inc., No. 6:18-cv-00372-ADA, 2019 WL 4743678
`
`(W.D. Tex. Sept. 13, 2019); see Petition at 22-40, Dkt. 2, In re Apple Inc.,
`
`No. 20-104 (Fed. Cir. Oct. 16, 2019) (Appx377-395). In the second, the
`
`plaintiff had no Texas connection, and the district court deferred to
`
`mere speculation that a non-party trade organization headquartered in
`
`Austin—as opposed to the chipmaker headquartered in California—
`
`would have information relevant to infringement. Order, Dkt. 59,
`
`STC.UNM v. Apple Inc., No. 1:20-cv-00351-ADA (W.D. Tex. Apr. 1,
`
`2020) (Appx400-416); see Petition at 16-39, Dkt. 2-1, In re Apple Inc.,
`
`No. 20-127 (Fed. Cir. May 14, 2020) (Appx441-464).
`
`Now, in this latest case, there is not even an arguable Texas
`
`connection to the dispute. Uniloc had every opportunity to show one,
`
`and it could not. See infra 18-24. Two other Texas district judges have
`
`recognized that similarly situated patent-infringement disputes
`
`between these parties have no connection to Texas and have transferred
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`21 other cases to the Northern District of California because it is
`
`“clearly a more convenient forum for the parties and witnesses.” Uniloc
`
`USA, Inc. v. Apple Inc., No. A-18-CV-990-LY, 2019 WL 2066121, at *4
`
`(W.D. Tex. Apr. 8, 2019); see also Appx144. Yet the district court
`
`13
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`
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`Case: 20-135 Document: 2-1 Page: 22 Filed: 06/16/2020
`
`announced at the conclusion of the transfer hearing that it was “going
`
`to deny the motion to transfer,” Appx296—and Apple continues to wait
`
`for the district court’s explanation.
`
`As Apple and others have demonstrated to this Court, the district
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`court’s transfer rulings turn on clear legal errors and unjustifiable
`
`factual analyses that warp the § 1404(a) analysis and do not serve “the
`
`convenience of parties and witnesses” or “the interest of justice.” See
`
`generally Nos. 20-104 (Apple), -126 (Adobe), -127 (Apple), -130
`
`(Dropbox), -132 (Dropbox) (Fed. Cir.). Left unchecked, the district
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`court’s flawed approach will encourage and reward forum- and judge-
`
`shopping by plaintiffs eager to litigate in a venue that has nothing to do
`
`with the lawsuit, but which they view (rightly or wrongly) as favorable
`
`to their side.
`
`Because Texas has no divisional venue rules, plaintiffs are free to
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`file in the Waco Division of the Western District—guaranteeing that
`
`Judge Albright, the only Waco Division district judge, will be assigned
`
`to their case. See Alex Botoman, Note, Divisional Judge-Shopping, 49
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`Colum. Hum. Rts. L. Rev. 297, 298 (2018) (describing ability to judge-
`
`shop within Texas). Judge Albright has publicly invited plaintiffs to file
`
`14
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`
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`Case: 20-135 Document: 2-1 Page: 23 Filed: 06/16/2020
`
`their patent cases in Waco. See, e.g., Michelle Casady, Waco’s New
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`Judge Primes District for Patent Growth, Law360 (Feb. 12, 2019),
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`https://tinyurl.com/Law360Waco. And plaintiffs have heeded the call.
`
`See, e.g., Mark Curriden, “User friendly” approach means Texas has new
`
`high-stakes patent litigation hotspot, Dallas Bus. J., 2019 WLNR
`
`35169859 (Nov. 21, 2019) (“Prior to Judge Albright taking the federal
`
`bench in September 2018, less than a dozen patent infringement cases
`
`had been filed in Waco. Ever. More than 250 patent lawsuits have
`
`been filed there during the past 14 months.”).
`
`Encouraging patent litigation in a particular district is not
`
`objectionable. Encouraging that litigation, and then misapplying the
`
`law to prevent § 1404(a) transfer where it is clearly warranted, is an
`
`invitation to judge-shopping. This case is a stark example. Uniloc
`
`originally filed this very case in the Austin Division, where it was
`
`assigned to Judge Yeakel. See supra 5. During the transfer briefing—
`
`and while Judge Albright’s confirmation was pending—Uniloc
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`voluntarily dismissed, then refiled the same case in the Waco Division
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`after the others had been transferred and after Judge Albright had been
`
`confirmed. Id.
`
`15
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`
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`Case: 20-135 Document: 2-1 Page: 24 Filed: 06/16/2020
`
`The maneuver worked. Where Judge Yeakel had recognized that
`
`transfer to the Northern District of California was clearly warranted,
`
`Judge Albright (for unstated reasons) decided to keep this case in the
`
`Western District of Texas. The district court’s clear aversion to
`
`interdistrict transfer will encourage plaintiffs like Uniloc to continue
`
`filing lawsuits in the Waco Division; even with zero ties to the forum,
`
`they can be sure their case will remain before Judge Albright.
`
`“The Supreme Court has long urged courts to ensure that the
`
`purposes of jurisdictional and venue laws are not frustrated by a party’s
`
`attempt at manipulation.” In re Microsoft Corp., 630 F.3d 1361, 1364
`
`(Fed. Cir. 2011); see also Jonas Anderson, Judge Shopping in the
`
`Eastern District of Texas, 48 Loy. U. Chi. L.J. 539, 543 (2016) (“Should
`
`the concentration of almost one-third of the nation’s patent decision
`
`making be in one man’s hands, regardless of how skilled that judge is?”)
`
`(focusing on Judge Gilstrap). This Court should grant mandamus to
`
`correct the clear abuse of discretion in the denial of transfer here, and
`
`to discourage plaintiffs from continuing to engage in blatant forum- and
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`judge-shopping that defeats the purpose of § 1404(a).
`
`16
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`Case: 20-135 Document: 2-1 Page: 25 Filed: 06/16/2020
`
`II.
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