In In re TS Tech USA Corp., Misc. Docket No. 888 (Fed. Cir., December 29, 2008), the Court of Appeals for the Federal Circuit granted a petition for Writ of Mandamus, based on a denial of a motion to transfer venue.  The Federal Circuit relied on the product liability mandamus case, In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc) (“Volkswagen II”).  The points of error the Federal Circuit found were:

(1)    the district court gave too much weight to the patent owner’s choice of venue, because the plaintiff’s choice of venue cannot be considered as a “distinct factor” in the  1404(a) analysis.  

(2)    the district court failed to apply the “100-mile” rule, which requires that the factor of inconvenience to witnesses increases in “direct relationship to the additional distance to be traveled” if the witnesses are over 100 miles from the venue.

(3)    the district court considered the relative ease of access to sources of proof to be neutral.

(4)    the district court erred in analyzing the public interest in having localized interests decided at home, because, although the allegedly infringing products were sold in the district, they were sole throughout the US.  Therefore, the citizens of the Eastern District had no more interest than the citizens of any other district.

In determining that the errors were sufficient for mandamus, the Federal Circuit noted that the errors were identical to the errors in the Volkswagen II case:

There is no easy-to-draw line separating a “clear” abuse of discretion from a “mere” abuse of discretion in all cases. Volkswagen II, 545 F.3d at 310. Nevertheless, we conclude that TS Tech has met its difficult burden of demonstrating a clear and indisputable right to a writ. As in Volkswagen II, the district court clearly abused its discretion in denying transfer from a venue with no meaningful ties to the case. In granting mandamus, the en banc Fifth Circuit found that the court’s denial of transfer was a clear abuse of discretion because it (1) applied too strict of a standard to demonstrate transfer, (2) misconstrued the weight of the plaintiff’s choice of venue, (3) treated choice of venue as a 1404 factor, (4) misapplied the forum non conveniens factors, (5) disregarded Fifth Circuit precedent, including the 100-mile rule, and (6) glossed over the fact that not a single relevant factor favored the plaintiff’s chosen venue. Id. at 318. Because the district court’s errors here are essentially identical, we hold that TS Tech has demonstrated a clear and indisputable right to a writ.