This month, Judges Rader, Newman, and Bryson were assigned to the motions panel, and they issued several orders relating to venue and jurisdictional issues.

Maybe that happened because there is no place like the Eastern District of Texas.  And there is no federal district court that has seen more criticism and discussion of its venue decisions.  The Federal Circuit granted yet another set of petitions seeking a transfer of claims from the Eastern District of Texas to another venue.  Here, the court considered the petitions of 41 defendants seeking to transfer 3 patent infringement actions to New York, where the plaintiff Real Time and 27 of the defendants are located.  In re Morgan Stanley et al., No. 2011-m962 (Fed. Cir. April 6, 2011) (Judges Rader, Newman, and Bryson).  The Texas court had denied this transfer motion because of its familiarity with two of the patents and the general field of the technology.

The Federal Circuit denied an unrelated request to transfer claims against another company from Texas to California.  In re Simpson Strong-Tie Co., Inc. et al., No. 2011-m970 (Fed. Cir. April 6, 2011) (Judges Rader, Newman, and Bryson).  In this case, the patentee employed a number of people locally in Texas and several potential witnesses had been identified who live around that district.  The court concluded that the denial of transfer was not patently erroneous and denied the petition, despite the fact that the defendant and a number of potential witnesses had significant contact with California.

The court transferred an unfair competition appeal to the Ninth Circuit, since the Federal Circuit lacks the jurisdiction to hear a bare appeal of issues relating to an unfair competition claim. Fifty-Six Hope Road Music, ltd., No. 2011-1262 (Fed. Cir. April 6, 2011) (Judges Rader, Newman, and Bryson).  From time to time, district court clerk offices and appealing parties send cases to the Federal Circuit that do not fall within the court’s limited jurisdiction.  See 28 U.S.C. § 1295.

The Federal Circuit also dismissed a premature appeal from a TTAB decision that dismissed claims to cancel 18 registered trademarks of RCN Telecom based on fraud allegations.  RCN Television, S.A. v. RCN Telecom Services, Inc., No. 2011-1112 (Fed. Cir. April 6, 2011) (Judges Rader, Newman, and Bryson).  The Board had not yet ruled on cancellation requests under Section 2(d) of the Lanham Act associated with 15 of the marks.  It also remanded a settled case to the district court, so that the trial judge could vacate certain orders it issued relating to claim construction and SJ in that case.  Dicam, Inc. v. Cellco Partnership, No. 2011-1034 (Fed. Cir. April 4, 2011) (Judges Rader, Newman, and Bryson).  It remains to be seen whether Judge Turk in the Western District of Virginia will agree to vacate his own prior orders, and the Federal Circuit maintained jurisdiction to hear any appeals relating to the motion for vacatur.

Finally, the court dismissed an appeal from Delaware relating to a patent asserted against sweat band products with impact-absorbing inserts for failure to prosecute the appeal.  Innovative Patents, LLC v. Brain-Pad, Inc., No. 2010-1531 (Fed. Cir. April 6, 2011).  The patentee, Innovative Patents, failed to file its entry of appearance, certificate of interest, and its initial appeal brief.  Magistrate Judge Thynge previously construed certain critical claim language, and Innovative Patents had appealed to the Federal Circuit from her subsequent SJ opinion of noninfringement.

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