Bloomberg Law
Sept. 18, 2020, 3:02 PM

Apple, Uniloc to Spar at Federal Circuit Over ‘Judge-Shopping’

Perry Cooper
Perry Cooper
Legal Reporter

Apple Inc. wants the Federal Circuit to stop the Western District of Texas from allowing “unabashed forum- and judge-shopping” in patent disputes, in a case set for argument Sept. 22.

Apple filed a petition for mandamus asking the U.S. Court of Appeals for the Federal Circuit to overturn Judge Alan Albright’s decision refusing to send Uniloc 2017 LLC’s patent infringement suit against it to what Apple considers a more convenient court.

The Federal Circuit rarely holds oral arguments on mandamus petitions, meaning the three judges assigned to the case must find that it raises interesting issues. It could be another sign that the court is keeping an eye on Albright—the sole judge of the U.S. District Court for the Western District of Texas’ Waco Division—who has created a new patent litigation hot spot in the two years he’s been on the bench.

Uniloc has argued in response that such an extraordinary remedy isn’t warranted where the lower court properly weighed the relevant factors before ruling against a transfer.

Apple and other tech companies have tried unsuccessfully to get the Federal Circuit’s attention when Albright rebuffed their efforts to move cases out of his court. But recently the Federal Circuit sided with Adobe, finding that Albright’s alleged ability to handle cases faster than other courts can’t be the main reason for rejecting transfer motions.

One of 24 Cases

Uniloc is alleging the software download functionality in a range of Apple products infringes U.S. Patent No. 6,467,088 on a system to control software updates.

The case was one of 24 suits involving 35 patents Uniloc filed against Apple in the Eastern and Western Districts of Texas. Judges in the Eastern District transferred 21 to the Northern District of California as the more convenient forum. Two other cases are stayed pending appeals from patent office action.

Apple also moved to transfer the suit to the Northern District of California, where it is headquartered and where its says relevant witnesses and documents are located.

The Western District of Texas denied Apple’s motion, finding the company failed to show that transfer is warranted. “Discretionary decisions by other courts in different cases do not compel the transfer of the current case,” the court said.

Disputing Transfer Factors

In its petition for Federal Circuit review, Apple argued the dispute falls into a pattern of cases where transfer has been denied even though there is no connection to the Western District of Texas.

“The district court’s steadfast refusal to transfer patent cases out of the Western District of Texas—even when another forum is unquestionably and significantly more convenient—is inviting plaintiffs to do exactly what Uniloc did here: intentionally file in a venue that has no connection to the case but which guarantees assignment to a judge that the plaintiff views as desirable,” Apple argued. “That is judge-shopping plain and simple, and this court should not permit it to continue.”

The transfer factors weigh heavily in favor of sending the case to the Northern District of California, Apple said. “It is not even a close call.”

Uniloc argued it is “disingenuous for Apple to proclaim that this case has no connection” to the Western District of Texas. It points to Apple’s “billion-dollar,130-acre campus” in the district, “where it employs approximately 8,000 people across all aspects of its business, including finance, marketing, technical support, and product engineering.”

The Federal Circuit has recently rejected Apple’s mandamus attempts in two similar cases, Uniloc said. “The same outcome should apply here.”

Technology advocates ACT | The App Association, Computer & Communications Industry Association, Roku Inc., and Unified Patents LLC have sought leave to file an amicus brief in support of Apple.

Albright’s ruling in the case shows that “Waco is not only establishing itself as a busy patent forum, but as a patent forum without a realistic transfer mechanism available to defendants,” they argue. The Federal Circuit hasn’t ruled on whether it will accept the amicus brief.

Mel Bostwick of Orrick, Herrington & Sutcliffe LLP in Washington will argue for Apple. Christian Hurt of the Davis Firm PC in Longview, Texas, will argue for Uniloc.

The case is In re Apple Inc., Fed. Cir., No. 20-135, argument 9/22/20.

To contact the reporter on this story: Perry Cooper in Washington at

To contact the editors responsible for this story: Renee Schoof at; Keith Perine at