BROADBAND iTV, INC. v. DISH Network, L.L.C. DC CAFC

After filing patent litigation over the past few years in the Western District of Texas, Broadband iTV, Inc. (BBiTV) has turned to the International Trade Commission (ITC), filing a complaint that proposes Altice, Charter Communications, and Comcast as respondents (337-TA-3616), targeted over their “television services” as delivered through set-top boxes. BBiTV asserts four patents from its single-family portfolio (of more than 75 members) broadly directed to the playback of on-demand TV content over the Internet and/or various aspects of related interactive program guides. The complainant pleads a domestic industry based on the activities of DISH Network, with which BBiTV “has a non-exclusive Cross-License patent agreement” covering those patents; litigation between BBiTV and DISH ended on December 1, 2021.

The Federal Circuit has ordered District Judge Alan D. Albright to transfer several more cases out of his courtroom, reversing prior denials of motions to transfer for convenience. These latest decisions build on a growing number of writs of mandamus that cement a clear appellate position: a district court abuses its discretion when it denies a defendant transfer to a more convenient forum, based on the other applicable factors, because “court congestion”—i.e., the West Texas court’s ability and willingness to set a relatively aggressive case schedule—is viewed to weigh against transfer, however heavily.

The Federal Circuit has resolved another skirmish in its ongoing battle with District Judge Alan D. Albright over convenience transfers. On August 13, the appellate court ruled that Judge Albright had once again erred in his application of certain substantive factors in denying DISH’s motion to transfer a case filed against it by Broadband iTV, Inc. to Colorado. The Federal Circuit’s decision is notable in part for its procedural posture, since the court declined to grant DISH’s petition for mandamus review yet still directed Judge Albright to revisit his decision. That basis for granting relief prompted Circuit Judge Jimmie Reyna to fault the Federal Circuit’s rationale in a concurrence, warning that the ruling essentially created a “mandamus light” standard based on a potentially improper reading of underlying precedent.

The Federal Circuit has just received yet another mandamus petition challenging District Judge Alan D. Albright’s handling of a convenience transfer motion (2021-0148). On May 28, DISH sought the appellate court’s review of an April 20 decision declining to transfer a case filed by Broadband iTV, Inc. (6:19-cv-00716) to Colorado, which Judge Albright handed down nearly a year after the defendant filed its motion. The company’s petition notes the procedural impact of that delay and objects to the court’s analysis on a variety of substantive issues, many of which the Federal Circuit has previously flagged in reversals of other transfer rulings from Judge Albright.

Broadband iTV, Inc. (BBiTV) has added a Western District of Texas suit against Amazon (6:20-cv-00921) to the cases that it filed in that district against AT&T (DirecTV) (1:20-cv-00717, 6:19-cv-00714), and DISH Network (6:19-cv-00716) there in December 2019. Three of the six patents asserted against Amazon generally concern the playback of on-demand TV content over the Internet, while the other three are broadly directed to various aspects of an interactive program guide offering hierarchical navigation. BBiTV targets Amazon’s video-on-demand streaming products, including various Fire-branded set-top boxes and streaming devices, as well as the Amazon Prime Video app for iOS and Android.