Slow down on Mandamus: Federal Circuit Refuses to Short Circuit Judge Albright’s Decision Process

In re Bose Corp (Fed. Cir. 2021)

Another mandamus venue case from Judge Albright’s Waco Texas courtroom. This time, however, the Federal Circuit has denied mandamus, holding that the defendant-petitioner had failed to show the requisite extraordinary cause.

The underlying lawsuit was filed in July 2020.  Koss Corp. v. Bose Corp., 6:20-cv-00661 (W.D. Tex.).  In December 2020, Bose filed its motion to dismiss/transfer for improper venue under 28 USC 1400(b).  Briefing completed on the motion in March 2021. Then, in April 2021 Judge Albright indicated that he planned to rule on the venue motion “next week” and that all deadlines remained in place as they await the decision.  Today, May 25, 2020, Judge Albright has still not ruled on the motion.  earlier this month Bose petitioned for mandamus asking the the appellate court to order Judge Albright to set everything aside until he decides the venue question.

In its analysis, the Federal Circuit found that Judge Albright has already taken steps to place the venue question next in line, and that he is not required to unduly delay other aspects of the case.  Notably, Judge Albright has entered standing orders regarding motions to transfer/dismiss:

• The Court will not conduct a Markman hearing until it has resolved the pending motion to transfer.
• Except with regard to venue, jurisdictional, and claim construction-related discovery, all other discovery is stayed until after the Markman hearing.
• Prior numerical limits on venue discovery are eliminated.

With these elements in place, the Federal Circuit found no serious harm associated with allowing a case to incrementally move forward while parties await outcome of the venue motion.  In particular, Bose wanted a stay of briefing of the Markman dispute, but the court found no “clear legal right to stay those deadlines” or any “irreparable harm” that may occur.

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Bose obviously sells its speakers on a global basis. The company also used-to have a set of Bose retail locations, including one within the W.D. Texas.  However, in n February 29, 2020, Bose its local store (as well as its other North American retail stores).  Thus, the question appears to be whether a recently closed business still counts as a “regular and established place of business” for venue purposes under the statute.  The Federal Circuit has not squarely addressed this issue. See In re Google, 949 F.3d d 1338, n.1 (Fed. Cir. 2020) (“The regional circuits appear to be split on the exact timing for determining venue. … We need not decide the correct standard [in this case].”).

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Patents at issue: U.S. Patent Nos. 10,206,025 (“the ’025 Patent”), 10,368,155 (“the ’155 Patent”), and 10,469,934 (“the ’934 Patent”) (collectively “the Patents-in-Suit”).