Aire Technology Limited v. Apple Inc DC CAFC

On November 8, 2022, the Federal Circuit vacated scheduling orders in three cases filed against Apple in the Western District of Texas. The appellate court ruled that District Judge Alan D. Albright abused his discretion both by pushing forward on substantive matters in the litigation without deciding a trio of Apple motions to transfer for convenience—which would be left, according to the vacated scheduling orders, for resolution after the close of all fact discovery—and by denying Apple’s motions to stay the cases pending resolution of the mandamus petitions themselves. Now, Judge Albright has responded.

The Federal Circuit has issued another rebuke against Western District of Texas Judge Alan D. Albright over his approach to transfer timing. In the past few years, the appellate court has repeatedly ordered Judge Albright to consider transfer motions before turning to substantive issues like claim construction, leading him to modify his general case schedule to open venue discovery automatically upon the filing of a motion to transfer, with Markman hearings (typically scheduled early) often delayed. However, Judge Albright has argued that parties have since “beg[u]n abusing this process”, “strategically wait[ing]” to file their transfer motions—prompting him to impose a modified scheduling order in three cases against Apple that pushed the consideration of its convenience transfer motions to after the close of fact discovery. Now the Federal Circuit has overturned that scheduling order, ruling in three decisions—one precedential—that Judge Albright abused his discretion by pushing forward on substantive matters without deciding Apple’s transfer motions, and by denying its motions to stay pending appeal.

The scheduling framework announced by Western District of Texas Judge Alan D. Albright in a case that XR Communications, LLC (d/b/a Vivato Technologies) filed against Apple (6:21-cv-00620) is no longer confined to that case. It also applies to suits filed separately against Apple by Aire Technology Limited (6:21-cv-01011) and Scramoge Technology Limited (6:21-cv-01071). That framework boots the consideration of Apple’s motions to transfer these cases out of West Texas for convenience to after the close of fact discovery. To avoid more problems with the Federal Circuit, which has repeatedly held that transfer consideration should precede any turn to substantive issues in the case (like claim construction), Judge Albright has delayed—in all three cases—a previously scheduled Markman hearing until after both the close of fact discovery and a ruling on “replacement” motions to transfer, to be informed at that point by full discovery. Late last month, the court handed down a “supplemental consolidated” order explaining its reasoning for denying Apple’s motion to stay these cases while mandamus review proceeds before the Federal Circuit.

Aire Technology Limited (f/k/a Bowen Ventures Limited) has added a Western District of Texas case against Alphabet (Google) (6:21-cv-01104) to its litigation over patents received from G+D. The four patents-in-suit are broadly directed to secure contactless communications, with infringement allegations targeting the defendant over Pixel-series smartphones that support Google Pay.

As might have been predicted when Aire Technology Limited (f/k/a Bowen Ventures Limited) launched its first litigation campaign in September, then targeting Samsung’s provision of devices that support Samsung Pay or Google Pay, the Irish NPE has followed up with a suit against Apple (6:21-cv-01101), targeting devices that support Apple Pay. The patents asserted in this campaign originated with G+D and generally relate to secure contactless communications.