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.
Since April, Atlantic IP’s Scramoge Technology Limited has been filing litigation, across two campaigns as a formal matter, over wireless transfer patents from a former LG Innotek portfolio that it acquired this past February. Before November, two defendants—Apple and Samsung—had been sued in each campaign, but now Scramoge has sued Alphabet (Google) (6:21-cv-01138) in its second campaign, ticking the number of overlap defendants up to three. Targeted in the new Western District of Texas complaint with two of those former LG Innotek patents is the Google Pixel Stand wireless charging device.
So far this month, Scramoge Technology Limited has added four cases to its wireless charging litigation, one campaign of which began with an April 2021 suit against Samsung and the other of which began with an August 2021 suit, again against Samsung. The new defendants are Anker (Fantasia Trading d/b/a AnkerDirect) (5:21-cv-01712), Evercel (Mophie) (8:21-cv-01673), and Hon Hai Precision Industry (Belkin) (2:21-cv-08035), with the Atlantic IP Services Limited plaintiff hitting Apple (6:21-cv-01071) for a second time this past week as well. The bulk of the asserted patents across the two campaigns originated with LG Innotek.