AuthorAnderson, J. Jonas


Ordinarily, in federal court, only case-ending judgments can be appealed. The writ of mandamus is one exception to that so-called final judgment rule. Mandamus permits a litigant who is dissatisfied with a lower court ruling to obtain immediate reversal if among other things, the ruling was indisputably wrong and the party seeking mandamus has no other way to get relief. This exacting standard stems from mandamus's origin as one of the common law's "extraordinary" writs. Federal courts of appeals typically issue mandamus once or twice per year at most.

In patent cases, however, mandamus is a remarkably ordinary form of appellate relief. As the empirical study presented by this article shows, in the past thirteen years, the U.S. Court of Appeals for the Federal Circuit, which hears all patent appeals nationwide, has issued mandamus sixty-one times, granting 22% of the mandamus petitions it has received in cases pending in the federal district courts (61 of283).

Crucially, the Federal Circuit's high grant rate is driven almost entirely by mandamus petitions in cases from two judicial districts, the Eastern and Western Districts of Texas, on a single legal issue, transfer of venue. On transfer-related petitions arising from those courts, the Federal Circuit has granted the extraordinary writ of mandamus an astonishing 37.3% of the time (in 38 of 102 cases) since 2008. And this after having never granted a transfer-related mandamus petition before that year.

The Federal Circuit, with its semi-specialized jurisdiction over patent cases and a few other areas, is often criticized for taking an "exceptionalist" approach to procedural issues in patent litigation. It is tempting to lob that critique at the Federal Circuit's aberrant mandamus practice, too. We argue, however, that the court's high grant rate actually stems from systematic flaws in the patent litigation system that the Federal Circuit has little power to fix--namely, rules of venue and judicial case assignment that encourage plaintiffs to shop not just for favorable district courts, but for individual district judges. Addressing the underlying problem of judge shopping--as the Western District of Texas has finally begun to do--would likely help bring the Federal Circuit's mandamus practice into the mainstream.

TABLE OF CONTENTS INTRODUCTION I. MANDAMUS IN THE FEDERAL COURTS: A PRIMER ON APPELLATE JURISDICTION, PROCEDURE, AND PRACTICE A. Interlocutory Appeals B. Writs of Mandamus C. Federal Circuit Appeals: Interlocutory and Otherwise D. Venue in Patent Infringement Cases E. Mandamus Across the Federal Courts of Appeals II. METHODOLOGY III. RESULTS A. Interlocutory Proceedings at the Federal Circuit B. Interlocutory Proceeding Outcomes 1. Outcomes of Petitions for Permission to Appeal 2. Outcomes of Petitions for Writs of Mandamus C. Petitions for Writs of Mandamus at the Federal Circuit D. Petitions for Writs of Mandamus: Venue and Stay E. Petitions for Writs of Mandamus Seeking Convenience Transfer F. Petitions for Writs of Mandamus Seeking Convenience Transfer from the Eastern and Western Districts of Texas IV. FIFTH CIRCUIT COMPARISON V. IMPLICATIONS A. Rules v. Standards 1. Two Similar Cases, Two Different Outcomes 2. Changing the Law of Transfer and Mandamus B. Panel Dependence C. Court Competition CONCLUSION DATA METHODOLOGY ADDENDUM INTRODUCTION

Mandamus. At first glance, not the most exciting topic in the civil procedure canon. The writ is an obscure footnote in the casebook stalwart, Burnham v. Superior Court of California, (1) which confirmed the post-International Shoe viability of "tag" jurisdiction. (2) And it was the remedy sought in Marbury v. Madison, (3) arguably the most important Supreme Court decision of all time. But if, like us, you read those cases during your first year of law school, it wasn't to learn the standard for obtaining mandamus relief. And for good reason. Mandamus, the Supreme Court has made clear, "is a 'drastic and extraordinary' remedy 'reserved for really extraordinary causes.'" (4) Today, mandamus functions primarily as an exception to the usual rule that only final, case-ending lower court judgments can be appealed. (5) Appellate courts, when they grant the writ, usually do so to correct obvious lower court errors on extremely important questions. (6)

And yet, on a single Monday in November 2021, the U.S. Court of Appeals for the Federal Circuit, which hears all appeals in patent cases nationwide, (7) granted writs of mandamus in three separate patent infringement cases. (8) Each case had originally been filed in the Waco Division of the U.S. District Court for the Western District of Texas; under the Federal Circuit's mandamus orders, each case would be transferred to the Northern District of California. (9)

Are district court decisions keeping patent infringement lawsuits against tech behemoths like Apple and Google in Texas rather than sending them to the Bay Area the sorts of egregious errors that warrant an extraordinary writ like mandamus? (10) Reasonable minds might differ. But three mandamus grants in a single day would, indisputably, have been highly unusual in any other federal court of appeals. At the Federal Circuit, though, it was just another day. From 2019 through 2021, the court granted mandamus twenty times--nearly as many times as every other federal court of appeals combined (twenty-seven). (11)

Odder still is that most of the Federal Circuit's mandamus grants over that time period, including the three mentioned above, were directed at a single district court judge--Judge Alan Albright in the Western District of Texas--and involved the exact same issue--transfer of venue under 28 U.S.C. [section] 1404(a), which gives district courts discretion to transfer a case from one district to another "[f]or the convenience of parties and witnesses, in the interest of justice." (12) But the Federal Circuit's enthusiastic use of mandamus is not a new phenomenon. As one of us wrote a decade ago, using mandamus to, essentially, "supervise" district court decisions on a discretionary issue like transfer of venue "is unprecedented in any federal court of appeals" and "conforms to no theory of appellate mandamus currently recognized by the ... courts." (13) Yet the practice continues apace. Indeed, many parties embroiled in patent infringement litigation in the Western District of Texas claim that the Federal Circuit's grant rate is rapidly accelerating. (14)

To get a better grasp of mandamus practice at the Federal Circuit--and to determine whether the Federal Circuit's use of the extraordinary writ is, well, extraordinary--we conducted what we believe is the first comprehensive empirical study of all Federal Circuit decisions in interlocutory appeals--that is, appeals that do not involve a final, case-ending judgment by the lower court or agency. The novel datasets we built for this study contain all interlocutory proceedings (including mandamus petitions as well as several other types of appeals from non-final rulings) at the Federal Circuit from 2008 through 2021.

We conclude that mandamus, consistent with its status as an extraordinary writ, is, overall, a difficult remedy to obtain at the Federal Circuit. Of the 501 mandamus petitions in our dataset, the Federal Circuit granted 68, or 13.6%. But not all petitions have an equal chance of being granted. For instance, the Federal Circuit granted 22% (61 of 283) of mandamus petitions arising from the federal district courts, as compared to only 6% of petitions arising from the other tribunals it reviews, such as the Court of Federal Claims, Court of Appeals for Veterans Claims, and Merit Systems Protection Board. In other words, virtually all (90%) Federal Circuit orders granting mandamus involved cases from the district courts, which are almost entirely patent infringement cases.

But even among patent cases, one issue and two district courts stand out: venue and the Eastern and Western Districts of Texas. In district court cases involving questions of venue, the Federal Circuit granted 31% (53 of 176) of mandamus petitions. On all other issues arising from the district courts, the court granted only 7% (7 of 106) of petitions. Moreover, not even all venue petitions have an equal chance of being granted. Excluding petitions coming out of the Eastern and Western Districts of Texas, the Federal Circuit granted only 11.5% (3 of 26) of petitions seeking transfer of venue for convenience reasons. The grant rate in transfer cases from the Eastern and Western Districts of Texas was over three times higher: 37.3% (38 of 102).

These empirical findings have at least two implications for procedural reform in patent litigation--one of the most important issues facing the innovation ecosystem today. (15) First, it is tempting to criticize the Federal Circuit for using what is supposed to be an extraordinary writ as, essentially, a mechanism for interlocutory error correction. (16) However, our data makes clear that it is district judges in the Eastern and Western Districts of Texas-who, as two of us have argued elsewhere, use questionable denials of transfer motions as a mechanism to attract patent cases to their courtrooms (17)--who have forced the Federal Circuit into a position in which it has few good options.

Second, although the Federal Circuit could alter the legal doctrine governing transfer motions in an effort to rein in district judges' most egregious decisions, (18) changing the standards for transfer will not solve the underlying problems that are leading to large numbers of mandamus grants. For one thing, the number of legally permissible venues is quite large in most patent cases because the relevant venue statute allows patent infringement plaintiffs to choose from a wide array of courts, many of which have little connection to the underlying suit. (19) For another, the mechanisms by which district courts assign cases to judges...

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