Last November, Western District of Texas Judge Alan D. Albright imposed stays in three cases filed against Apple, pending his resolution of the defendant’s trio of motions for convenience transfers to the Northern District of California. Judge Albright did so after the Federal Circuit granted Apple’s petitions for writs of mandamus, ordering the lower court to vacate scheduling orders that had moved consideration of those motions to transfer until after the close of full fact discovery. Judge Albright has yet to weigh in on the motions to transfer the stayed cases, but he has resolved a motion filed by Apple in another suit, handing down an order that might provide clues about the court’s posture with respect to the pending motions.

Speir Technologies Limited, a plaintiff associated with Dublin-based patent monetization firm Atlantic Services IP Limited, sued Apple roughly one year ago as part of a 5G mobile devices campaign over former Harris Corporation (now L3Harris) patents. In August 2022, Apple moved to transfer the case for convenience to the Northern District of California. The motion was fully briefed as of mid-November, although Speir had moved to strike new evidence and arguments raised in Apple’s reply (regarding the location of certain prior art-related witnesses). That motion to strike was fully briefed by early December.

One week later, Judge Albright entered an order transferring the case as requested and canceling a claim construction hearing planned for the next day. The court found three of the factors to be considered in resolving such a motion to favor transfer, two private (relative ease of access to sources of proof and cost of attendance for willing witnesses) and one public (local interest). The court tipped another public factor (administrative difficulties flowing from court congestion) slightly against transfer, finding all other private and public factors to be neutral. On balance, then, Apple had shown, per Judge Albright, that the Northern District of California is “clearly more convenient than” West Texas.

Digging into the order further, it is also clear that Judge Albright will continue to scrutinize these motions to transfer for convenience closely. For example, the court considered competing sets of willing witnesses identified by Apple and Speir. Judge Albright indicated that he was “convinced that Speir has demonstrated that there are four relevant Apple witnesses in Austin for the [accused products as to one of the four asserted patents] who would find travel within the WDTX more convenient than travel to the NDCA”. However, based on the “fact alone” that “Speir fail[ed] to identify any Apple witnesses in the WDTX that are relevant for the remaining accused functionalities”, the court found that the willing witnesses factor “strongly favors transfer to the NDCA”.

Along the way to this conclusion, Judge Albright notes that the declaration submitted in support of its identification of willing witnesses was signed by “Mark Rollins, a Finance Manager at Apple”. Prior to the Federal Circuit’s intervention, as part of its move to push transfer consideration beyond the close of fact discovery in the other three cases against Apple, the court had expressed skepticism of Rollins, who submitted similar declarations on venue issues there. The court indicated that the Rollins statements constitute “unreliable evidence” given that, per Judge Albright, Rollins “did not talk [to] any Texas employees” and “has yet to explain what Apple’s 7,000 employees work on in Austin”, leading the court to question the resulting “impression that there are no Apple products left for these 7,000 employees to work on” in this and other cases. The court also commented that it had been “left with the decision of how to rule on Apple’s venue motion when Apple’s primary venue declaration about the ‘relevant’ employees and evidence comes from a declarant [who] doesn’t know the difference between WiFi and RF”—citing his testimony on the underlying technology at issue in those other cases—“and hasn’t spoken to a single person in Texas”.

The ruling in the Speir case suggests that Judge Albright’s skepticism remains. By footnote in the order granting Apple’s transfer, the court comments that “Mr. Rollins is a repeat, professional venue declarant that this Court has repeatedly found to lack credibility”. However, the court indicates that “[b]ecause Speir does not challenge the credibility of Mr. Rollins here, it “will not discount his declaration in this case” (citations omitted). Such language appears to invite plaintiffs in future transfer tussles to tack differently.

The ruling in the Speir case also suggests that Judge Albright will maintain his posture that the speed with which West Texas, in particular his own courtroom, can take patent cases to trial will continue to tip the court congestion factor against transfer elsewhere. The court sets up Apple’s stance: “Google [sic] argues that the median time to trial in both districts is comparable: 867 days for the Northern District of California versus 702 for this Court”. It then attempts to take it down:

“While the Federal Circuit has previously held that there are “no significant differences in caseload or time-to-trial statistics” between the WDTX and the NDCA, In re Juniper Networks, Inc., 14 F.4th 1313, 1322 (Fed. Cir. 2021), recent data show that this Court has been able to hold trials faster than the Northern District of California, with an approximate time to trial of two years. The Federal Circuit has previously emphasized the importance of rapid disposition of patent cases. Kahn v. Gen. Motors Corp., 889 F.2d 1078, 1080 (Fed. Cir. 1989). It has even acknowledged Congress’s interest in the “quick” resolution of patent disputes. See, e.g., Ethicon Endo-Surgery, Inc. v. Covidien LP, 826 F.3d 1366, 1367 (Fed. Cir. 2016).

Judge Albright supplies a footnote canvasing recent West Texas trials in support of the statement that West Texas has been faster than the Northern District of Texas of late:

See, e.g., MV3 Partners v. Roku, Inc., 6:18-cv-00308-ADA (W.D. Tex., filed Oct. 16, 2018) (23.7 months from case filing to trial); CloudofChange, LLC, v. NCR Corp., No. 6:19-cv-00513-ADA (W.D. Tex., filed August 30, 2019) (20.3 months from case filing to trial); VLSI Tech. LLC v. Intel Corp., No. 6:21-cv-00057-ADA (W.D. Tex., filed Apr. 11, 2019) (22.4 months from case filing to trial); Freshub, Inc. v. Amazon.Com Inc., No. 6:21-cv-00511- ADA (W.D. Tex., filed Jun. 24, 2019) (23.7 months from case filing to trial); ESW Holdings, Inc. v. Roku, Inc., No. 6:19-cv-00044-ADA (W.D. Tex., filed Feb. 8, 2019) (25.9 months from case filing to trial); Profectus Tech. LLC v. Google LLC, 6:20-cv-00101-ADA (W.D. Tex., filed Feb. 10, 2020) (19.6 months from case filing to trial); Jiaxing Super Lighting v. CH Lighting Tech., 6:20-cv-00018-ADA (W.D. Tex., filed Jan. 10, 2020) (21.7 months from case filing to trial); VideoShare LLC v. Google LLC, 6:19-cv-663-ADA (W.D. Tex., filed Nov. 15, 2019) (23.8 months from case filing to trial); NCS Multistage Inc. v. Nine Energy Serv.’s, Inc., No. 6:20-cv-00277-ADA (W.D. Tex., filed Mar. 24, 2020) (21.8 months from case filing to trial); EcoFactor, Inc. v. Google LLC, No. 6:20-cv-00075- ADA (W.D. Tex., filed Jan. 31, 2020) (24 months from case filing to trial); Densys Ltd. v. 3Shape Trio A/S, 6:19-cv00680-ADA (W.D. Tex., filed Nov. 26, 2019) (28.3 months from case filing to trial); Appliance Computing III, Inc. v. Redfin Corp., No. 6:20-cv-00376-ADA (W.D. Tex., filed May 11, 2020) (24 months from case filing to trial); Caddo Sys. Inc., v. Microchip Tech. Inc., No. 6:20-cv-00245-ADA (W.D. Tex., filed March 27, 2020) (26.5 months from case filing to trial); SunStone Info. Def., Inc. v. International Bus. Machines Corp., No. 6:20-cv-1033-ADA (W.D. Tex., filed Nov. 9, 2020) (21.0 months from case filing to trial); NCS Multistage Inc. v. TCO Products Inc., No. 6:20-cv-00622-ADA (W.D. Tex., filed Sept. 9, 2020) (23.4 months from case filing to trial); Ravgen, Inc. v. Lab. Corp. of Am. Holdings, No. 6:20-cv-00969-ADA (W.D. Tex. filed Nov. 16, 2020) (23.1 months from case filing to trial).

Thus, “[i]n view of Federal Circuit law and recent time-to-trial statistics”, the court found this factor to weigh slightly against transfer, which seems like a finding fated to recur in the context of every convenience transfer analysis from Judge Albright.

This ruling perhaps provides clues as to how Judge Albright will rule in the other three stayed cases against Apple: one filed by XR Communications, LLC (d/b/a Vivato Technologies) in June 2021 (6:21-cv-00620) and two others, filed that October by Aire Technology Limited (6:21-cv-01011) and Scramoge Technology Limited (6:21-cv-01071), respectively, both also Atlantic Services IP plaintiffs. The dockets in these cases have not been entirely quiet since Judge Albright imposed the stays. Both Aire and Scramoge have filed amended complaints, prompting Apple to file a motion to dismiss in the Scramoge case (which motion has been fully briefed). Meanwhile, in the Vivato suit, Apple filed an unopposed motion (later granted) seeking permission to participate in certain depositions in cases in the same campaign that have not been stayed.

On January 9, notwithstanding Judge Albright’s ongoing skepticism of Apple’s venue declarant and his continued insistence that West Texas offers the speedier time to trial, the Northern District of California opened up a docket for the Speir suit against Apple.