The Federal Circuit has for the first time interpreted a closely watched decision on venue from the Fifth Circuit, the regional circuit that determines the applicable law governing convenience transfers in Texas patent cases. That October 2022 ruling, In re: Planned Parenthood, appeared to depart from the Federal Circuit’s prior take on issues central to the analysis of such transfer motions, including the location of evidence, the cost of attendance for witnesses, and the district judge’s overarching discretion over such matters. However, the Federal Circuit’s precedential In re: Google opinion, issued on February 1, argues that Planned Parenthood does not undercut its current approach. In Google, the court held that a clear showing that a venue is more convenient takes precedence over the district judge’s discretion. Even more significantly, the Federal Circuit determined that NPEs do not have an interest in getting cases to trial quickly—and that a district judge lacks the discretion to give undue weight to his district’s time to trial. The opinion reversed another transfer denial from Western District of Texas Judge Alan D. Albright, and comes months after Judge Albright began attempting to fill the gap with his own reading of Planned Parenthood.

When district courts decide patent matters, they must typically look to the Federal Circuit: as the appellate court with exclusive jurisdiction over patent litigation, its precedential decisions bind the lower courts on patent-related issues. However, convenience transfers present an interesting wrinkle: since they are governed by a venue statute not specific to patent cases, the Federal Circuit must apply the law of the applicable regional circuit court when resolving disputes over such motions. As a result, for appeals of convenience transfer decisions from the Western District of Texas, it is the law of the Fifth Circuit—albeit, as interpreted by the Federal Circuit—that applies. It is for this reason that a new precedential venue ruling from the Fifth Circuit, In re: Planned Parenthood, could force the Federal Circuit to rethink its approach to a variety of issues, including district judge discretion, the location of evidence, and the cost of attendance for witnesses, that have been at the center of the latter court’s series of mandamus rulings involving Waco District Judge Alan D. Albright. The impact of that decision is now being debated by two parties in his court, Motion Offense LLC and Google, while two other plaintiffs linked to Motion Offense have hit the defendant with new complaints of their own.

Grus Tech LLC has launched its first litigation campaign, suing LG Electronics (LGE) (4:20-cv-00192) and Samsung (4:20-cv-00190) in the Eastern District of Texas on the same day that Vulpecula, LLC has hit those two defendants (4:20-cv-00191 and 4:20-cv-00189, respectively) in the same district. Each plaintiff asserts patent(s) naming Robert Paul Morris as the sole inventor, with infringement allegations targeting certain of the defendants’ smartphones. These plaintiffs—two of five Texas entities, formed under similar circumstances roughly one month ago, to initiate litigation this past week—are part of a constellation of entities litigating Morris patents.