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West Texas Shift in Apple-Fintiv Patent Fight Nixed at Fed. Cir.

Oct. 1, 2021, 4:26 PM

Apple Inc. convinced the Federal Circuit to stop a West Texas judge from moving a patent case brought by Fintiv Inc. back to Waco for an upcoming trial.

Fintiv sued Apple in late 2018 in the Waco division of the U.S. District Court for the Western District of Texas. The case was later transferred to Austin. Apple filed a mandamus petition after U.S. District Judge Alan Albright decided to re-transfer the case back to Waco ahead of trial.

The U.S. Court of Appeals for the Federal Circuit said the move was a clear abuse of discretion. Albright “inexplicably” failed to do a full analysis, simply stating it was uncertain whether the Austin courthouse would be open for jury trials in the foreseeable future, the court said.

“Not only is this explanation minimal, but it is also not supported by any analysis of the traditional §1404(a) factors,” the Federal Circuit wrote, referring to factors courts use when weighing whether to transfer a case to a more convenient location.

“Nor is there any indication that the Austin courthouse is currently closed for trial,” the Federal Circuit added.

Pandemic Frustrations

Fintiv alleges the Apple Pay and Apple Wallet features on the iPhone and other devices infringe a patent related to contactless cards. Albright had scheduled the trial for Oct. 12.

Fintiv’s suit wasn’t the first Albright re-transferred to Waco from Austin. In December, he brought a case between Intel Corp. and VLSI Technology LLC back to Waco while the federal courthouse in Austin was under a pandemic-related closure.

The Federal Circuit said it wasn’t clear what changed since Albright in 2019 found Austin was more convenient for the Apple-Fintiv case. Witnesses and evidence are still in Austin, and the parties continue to have a presence there, the court said.

“So far as the briefing before this court reflects, the only factor that may have changed as a result of the COVID-19 pandemic is the public interest ‘court-congestion’ factor—which seems, at most, to slightly weigh in favor of re-transfer,” the Federal Circuit said.

That is the “most speculative” of factors, the Federal Circuit said, and shouldn’t outweigh all the other factors.

Apple is represented by Orrick Herrington & Sutcliffe LLP and DLA Piper LLP (US). Fintiv is represented by Kasowitz Benson Torres LLP.

The case is In re: Apple Inc., Fed. Cir., No. 21-187, 10/1/21.

To contact the reporter on this story: Matthew Bultman in New York at

To contact the editor responsible for this story: Keith Perine at