Venue Transfer Games Continue: Rafqa Star v. Google

by Dennis Crouch

Rafqa Star LLC v. Google LLC, No. 6:22-cv-01207-ADA, 2022 WL 3747666 (W.D. Tex. Aug. 17, 2022).

Google is one of the largest companies in the US with extensive ties not just to every state, but virtually every household in the entire country.  Still, the company regularly argues that it would be too unfair and inconvenient to litigate patent cases in states such as Texas. In a recent decision, Judge Alan Albright (W.D.Tex.) denied Google’s motion to transfer venue. In his 40-page order, Judge Albright provided an in-depth analysis of the private and public interest factors that, based upon prior precedent, govern transfer under 28 U.S.C. § 1404(a).  The relevant statute reads as follows:

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.

Id.  Before analyzing this case, I want to step back and recognize that the current legal test for patent venue transfer has departed significantly from the statutory language declaring the goals of convenience and justice. The public and private factor analysis mandated by current precedent does not actually focus on real inconvenience to parties or witnesses. For instance, the location of documents and witnesses gets weight when almost everything is cloud based. And the 100-mile rule makes little sense in an age of national air travel and remote work.  This is especially true for patent cases that will have nationwide impact.

Moreover, these motions are never really about convenience in patent cases, but rather are tactics for judge shopping with the parties competing to reach a perceived more favorable forum. Like Google, the defendants are typically corporations with national reach who can – and do – litigate anywhere. But they believe certain districts or judges, like Judge Albright, are less favorable for them. Venue motions are weaponized as part of broader forum shopping, not for legitimate inconvenience reasons.

This underlying reality casts doubt on the entire enterprise of venue disputes in patent cases. The jurisprudence should be realigned to get back to the statutory standard and goals of convenience and justice. But until then, district courts and parties are stuck playing this game, as evidenced by the venue fight in Rafqa v. Google.

An interesting solution would be to require parties to certify that the public and private factors highlighted in their argument serve as the primary motivation for seeking a venue change, rather than an attempt to avoid a judge or forum perceived to be less favorable.  W.D. Texas has also largely eliminated the Judge Albright singularity with its order requiring random distribution of patent cases filed in Waco.

As Judge Albright explained, Mr. Tan’s declaration ambiguously stated that Google employees “report to” offices in NDCA but did not declare that they actually reside there. Google’s lawyers then used this ambiguous phrasing claim that the employees were located in NDCA. Judge Albright also recounted inconsistent testimony Mr. Tan gave at an evidentiary hearing when pressed about his basis of knowledge for claiming employees were in NDCA.  Mr. Tan was unable to give a persuasive basis.  Based upon his in-person credibility determination, Judge Albright found Mr. Tan’s declaration and testimony unreliable and thus struck the statements about employee locations.

The order also explores apparent attempts by Google’s counsel to mislead the Court about the location of a Google employee in Texas. Counsel relied on a LinkedIn profile rather than investigating the employee’s actual location, leading to shifting stories.

These aspects of the case offer some important tactical considerations for the parties, especially when the fact-finder is a judge rather than a jury.

This case will almost certainly receive a mandamus petition to the Federal Circuit, and it will be interesting to see whether the appellate court once again rejects Judge Albright’s approach.

Rafqa’s asserted patent US11145215 claims a method of providing user feedback (such as directions) based upon inputs from a motion detector and video device.