As the Western District of Texas remains atop the venue charts, an issue of ongoing interest for patent litigants has been how District Judge Alan D. Albright has handled motions to transfer. Most of this narrative has thus far focused on his restrictive approach to convenience transfers, a posture that may be shifting in response to a series of recent reversals by the Federal Circuit. However, less attention has been paid to his treatment of motions alleging improper venue, since—unlike former NPE hotspots like the Eastern District of Texas—many companies have active operations in West Texas, and may therefore “reside” in that venue as established under the Supreme Court’s 2017 TC Heartland decision. While such a venue challenge may not be an option for some defendants, recent orders by Judge Albright suggest that improper venue challenges may succeed in his court for companies with a sufficiently minimal presence there.
It looks like the infringement dispute between Koss Corporation and Apple will play out in the Western District of Texas, where Koss filed five infringement suits last July, one each against Apple, Bose, PEAG (d/b/a JLAB Audio), Plantronics (Polycom), and Skullcandy. Those defendants responded with motions seeking dismissal (or transfer) from West Texas, Apple and Bose also filing declaratory judgment actions elsewhere. Apple in particular asked District Judge Alan D. Albright to strike Koss’s complaint entirely, as impermissibly predicated on confidential information; in early April, Judge Albright denied that motion—and last week, the Northern District of California transferred Apple’s case against Koss to West Texas.
Last week, the Federal Circuit declined to issue a writ of mandamus in response to a request from Apple that all other proceedings in a case filed by Koss Corporation be stayed until District Judge Alan D. Albright rules on a motion to transfer the case to the Northern District of California. The appeals court did so in light of a new standing order from Judge Albright.
Bose (1:20-cv-12193) has become the second defendant sued in the Western District of Texas by Koss Corporation this past July to file a declaratory judgment action elsewhere. In early August, Apple asked the Northern District of California for declaratory judgments of noninfringement of the same patents asserted in Texas, also claiming breach of contract based on Koss’s alleged violation of a “Confidentiality Agreement” (effective between the parties in August 2017) by filing the Texas complaint. Apple has moved to strike that complaint, a motion that Koss has opposed, the parties’ briefing raising questions about the effect of entering into such pre-suit confidentiality agreements.
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Last month, Koss Corporation hit five defendants with separate patent infringement complaints, filed in the Western District of Texas, targeting the provision of wireless devices, including wireless earphones, headphones, speakers, and smartwatches. One of them has just fired back. In a new Northern District of California case (5:20-cv-05504), Apple accuses Koss of violating a “Confidentiality Agreement” effective between the parties in August 2017: “. . . having enticed Apple to participate in discussions, reveal information, and forego some of its legal options, Koss could not use Apple’s participation against it as a ‘gotcha’ to bring claims in a later litigation . . .That, however, is exactly what Koss did”.