By Paul R. Gugliuzza, Temple University Beasley School of Law; Jonas Anderson, American University Washington College of Law; and Jason Rantanen, University of Iowa College of Law. This is the second in a new series on venue transfer requests and mandamus at the Federal Circuit.
Litigants shouldn’t get to choose the judge who decides their case. To us, that seems like an uncontroversial proposition. The ability to “judge shop” is the primary reason patentees once flocked to the Marshall Division of the Eastern District of Texas to file their infringement suits and are now flocking to the Waco Division of the Western District of Texas, where they’re guaranteed to have their case assigned to Judge Alan Albright. Judge shopping, we’ve argued elsewhere, raises concerns about court bias and capture and can make litigation unnecessarily costly and inefficient.
Numerous scholars, members of Congress, and even the Chief Justice have raised concerns about judge shopping, with a particular eye toward patent cases. Likewise, the Federal Circuit has indicated skepticism about the rapid accumulation of patent suits in Waco. In the past two years, the court has used the extraordinary writ of mandamus to order over twenty patent cases filed in Waco to be transferred elsewhere under 28 U.S.C. § 1404(a), which permits transfer “[f]or the convenience of parties and witnesses, in the interest of justice.” (Over the same time period, the Federal Circuit granted only two § 1404(a) mandamus petitions arising from any other court, both from the Eastern District of Texas.)
Though we think the harms caused by a party being able to choose its own judge are clear and indisputable, there is a counternarrative. It goes something like this: the Federal Circuit is polluted with “anti-patent sentiment.” It is captured by the big tech companies that are the most frequent targets of infringement suits—Apple, Google, and the like. And the Federal Circuit is thwarting patentees (and innovation) by sending infringement cases away from patentees’ chosen courts in Texas to places that are friendlier to defendants, such as the Northern District of California.
Fortunately, data we have collected as part of our comprehensive empirical study of mandamus practice at the Federal Circuit can help us assess whether, when it comes to questions about patent venue, the Federal Circuit is really in the pocket of big tech.
First off, it is true that mandamus petitions seeking transfer from Texas to the Northern District of California are more likely to be granted than petitions seeking transfer to other districts. As the table below shows, from 2008 through 2021, the Federal Circuit granted 32.0% of mandamus petitions seeking to overturn a district court decision denying transfer from the Eastern District of Texas to the Northern District of California as compared to 25.6% of petitions seeking transfer from the Eastern District of Texas to any district besides the Northern District of California. Likewise, the Federal Circuit granted 63.2% of mandamus petitions seeking to overturn a district court decision denying transfer from the Western District of Texas to the Northern District of California as compared to 46.2% of petitions seeking transfer from the Western District of Texas to any district besides the Northern District of California.Overall, mandamus petitions seeking to overturn a district court decision denying transfer from either Texas district to the Northern District of California were granted 45.5% of the time, while petitions seeking transfer from either Texas district to any district besides the Northern District of California were granted only 30.8% of the time.
To be clear, this disparity in grant rates among transferee courts doesn’t establish that the Federal Circuit unduly favors Silicon Valley-based tech companies. Rather, it may be that cases filed against those companies in Texas present particularly strong cases for transfer given that the defendants’ offices, employees, documents, and R&D facilities tend to be located in California. Regardless, the data does make clear that a mandamus petition seeking transfer from Texas to the Northern District of California is nearly 40% more likely to be granted than a petition seeking transfer from Texas to any other district.
To better gauge big tech’s success at the Federal Circuit, we can also look at the grant rates for individual mandamus petitioners. We found these results, frankly, a little surprising. First of all, there are not as many repeat petitioners as one might think. In total, from 2008 through 2021, roughly 185 individual parties joined one or more petitions for a writ of mandamus seeking to overturn a decision by the Eastern or Western District of Texas denying transfer under § 1404(a). (For the purpose of this analysis, we combined obviously related corporate entities, such as Samsung Electronics and Samsung Electronics America. Also, because many petitions are joined by multiple parties, the total number of petitioners is much larger than the number of Federal Circuit decisions.)
The most frequent petitioner in our dataset is Apple, which filed 16 petitions over the 14 years covered by our study. The Federal Circuit granted 4 of those petitions. The most successful petitioner of note is Google, which prevailed on 4 of its 6 petitions. But those numbers are small, making it hard to draw definitive conclusions.
The table below shows the results of Federal Circuit mandamus decisions in which the Eastern or Western District of Texas denied transfer under § 1404(a), limited to petitioners who appeared in three or more decisions from 2008 through 2021.As indicated on the first table above, the overall grant rate for Federal Circuit mandamus petitions challenging denials of § 1404(a) transfer motions by the Eastern or Western District of Texas is 37.5%, so these frequent petitioners do about average. (Though of course the mandamus grant rates in cases out of the Eastern and Western Districts of Texas are much higher than in cases filed elsewhere.)
If we added the Federal Circuit’s mandamus decisions from 2022 (after we closed the dataset for our study at the end of 2021), the numbers would change somewhat. Apple is 2-0 this year, which ups its grant rate to 33.3%. Google also won its only petition in 2022, bumping its grant rate up even higher, to 71.4%. Samsung likewise is 1-0 this year, so its rate is now 50%. Still, we would hesitate to say that any of this establishes that the Federal Circuit is biased against patentees and in thrall to big tech.
To be sure, the world’s richest corporations, like Apple and Google, enjoy massive advantages any time they litigate; the notion that we have an impartial court system indifferent to litigants’ economic power is fanciful. But it’s also specious to claim that the Federal Circuit’s mandamus practice indicates court capture by big tech. More likely, the Federal Circuit is using the imperfect tools at its disposal to fix a real problem: the questionable incentives for both judges and litigants in a system where the party filing a case gets to choose its judge.