Tangle Around Judge Albright’s Transfer Scheduling Framework Tightens

October 23, 2022

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.

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