Case: 14-143   Document: 15     Page: 1    Filed: 09/11/2014




          NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  IN RE APPLE, INC.,
                       Petitioner.
                 ______________________

                        2014-143
                 ______________________

    On Petition for Writ of Mandamus to the United
States District Court for the Eastern District of Texas in
No. 6:12-cv-00943-JDL, Judge Leonard Davis.
                 ______________________

                     ON PETITION
                 ______________________
   Before REYNA, BRYSON, and HUGHES, Circuit Judges.
Opinion of the court filed PER CURIAM.
Dissenting opinion filed by Circuit Judge BRYSON.
PER CURIAM.
                       ORDER
    Apple, Inc. petitions for a writ of mandamus from an
order of the United States District Court for the Eastern
District of Texas denying its motion to transfer venue
pursuant to 28 U.S.C. § 1404(a). We grant the petition.
                      BACKGROUND
   On December 19, 2012, EON Corp. IP Holdings, LLC
(“EON”) filed suit against Apple in the Eastern District of
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2                                           IN RE APPLE, INC.




Texas asserting infringement of four patents: U.S. Patent
Nos. 5,592,491 (the “’491 patent”), 5,388,101 (the “’101
patent”), 5,481,546 (the “’546 patent”), and 5,663,757 (the
“’757 patent”).
    The record in this case presents certain facts that,
while perhaps not relevant to overall substantive patent
issues, are significant in the context of venue transfer
under § 1404(a). Here, the plaintiff, EON, is headquar-
tered in Texas, but is not involved in manufacturing,
marketing, or distribution of any products. It has one
employee in Texas, but EON has not identified this sole
employee as relevant to the issues in this case. EON has
no general, selling, or administrative costs, and hence, it
has no records related to such typical corporate activities.
It exists to file lawsuits and presumably to engage in
licensing activities throughout the United States. While
the law recognizes EON’s right as a plaintiff to select its
forum, the Supreme Court and Congress have determined
that this right is not unfettered.
      Apple, headquartered in Cupertino, California,
moved to transfer venue to the United States District
Court for the Northern District of California pursuant to
§ 1404(a), which authorizes transfer of a civil action “[f]or
the convenience of parties and witnesses, in the interest
of justice.”
    According to Apple’s filings, all of its relevant evi-
dence was in the Northern District of California. Apple
further claimed that at least eight party witnesses, along
with several prospective non-party witnesses, reside in
the Northern District of California. Apple identified
third-party witnesses Patrick King and John Wagner, the
prosecuting attorneys for the asserted patents; Lauren
Battaglia, a former EON employee; Intellectual Ventures;
Latham & Watkins LLP; and Pillsbury Winthrop LLP, as
having relevant and material information and residences
or offices in the Northern District of California. Apple
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 IN RE APPLE, INC.                                       3



also argued that the Eastern District of Texas was no
more familiar with this family of patents than other
venues, including the transferee venue, given “EON is
currently litigating the ’491 patent . . . in the Northern
District of California.” In addition, Apple pointed out that
EON had maintained litigation involving the same family
of patents in the United States District Courts for the
District of Delaware and the District of Puerto Rico.
     The district court denied Apple’s transfer motion.
EON Corp. IP Holdings, LLC v. Apple, Inc., 6:12-cv-941
(E.D. Tex. Mar. 28, 2014), ECF Nos. 40, 53 (“Transfer
Order”). To reach this decision, the district court applied
the traditional private and public interest forum non
conveniens factors See In re TS Tech USA Corp., 551 F.3d
1315, 1319 (Fed. Cir. 2008). As to the convenience of the
witnesses, the district court found that this factor favors
transfer. The district court determined that “[w]hile
neither EON nor Apple provides significant detail as to
the information possessed by the identified witnesses, and
neither suggests that they would require all the witnesses
identified to actually attend trial, Apple has identified
some witnesses who appear to reside in [the Northern
District of California].” Id. at *8. The court found that
neither party identified any witnesses in the Eastern
District of Texas.
    The district court also found that the compulsory pro-
cess factor was neutral. In doing so, the district court’s
order addressed only Mr. King, one of the prosecuting
attorneys for the asserted patents. The district court’s
order is silent with respect to the other non-party wit-
nesses identified by Apple. See id.
    The district court further concluded that the practical
problems factor disfavored transfer. The court noted that
“[a]t the time this case was filed on December 19, 2012,
and as of the time the instant motion was filed on April 3,
2013, it was evident that it could be consolidated with
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4                                            IN RE APPLE, INC.




other co-pending cases in this district involving the same
Patents-in-Suit.” Id. at *9. The court added that “this
Court has already construed the ’101, ’546, and ’491
Patents several times,” and thus “significant judicial
economy will be realized if this Court retains the above
captioned case.” Id.
     On balance, the district court determined that “the
convenience of the witnesses favor transfer, the relative
ease of access to sources of proof slightly favors transfer,
practical problems disfavor transfer, while the remaining
factors are neutral” and thus, “Apple has not shown that
it is clearly more convenient for the parties and witnesses
to transfer the instant case to [the Northern District of
California.]” Id. at *12.
                        DISCUSSION
    We apply regional circuit law, in this case Fifth Cir-
cuit law, to procedural issues and issues that do not
involve substantive patent law. See In re TS Tech USA
Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). In determin-
ing whether transfer is warranted, the Fifth Circuit
considers the public and private factors used in forum non
conveniens analysis. Id. Mandamus is an appropriate
remedy to rectify an erroneous consideration of the forum
non conveniens factors, as an appeal from final judgment
would be an inadequate remedy. Id. at 1322. Petitioners
seeking mandamus relief face a high hurdle. We will
grant mandamus relief only when a district court’s clear
abuse of discretion produces a patently erroneous result.
In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (Fed. Cir.
2008). This is such a case.
    We hold that the district court’s denial of transfer was
a “‘clear’ abuse of discretion” warranting mandamus
relief. Id. First, the district court failed to fully consider
the facts in the record. Second, the district court erred in
finding the compulsory process factor neutral. Third, the
district court failed to give proper weight to the conven-
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 IN RE APPLE, INC.                                          5



ience of the witnesses factor. Fourth, the district court
improperly assessed the weight of the practical problems
factor. Finally, the district court failed to properly bal-
ance the relative convenience of the venues and the
interest of justice in light of those facts.
    The district court erred in its analysis of the compul-
sory process factor by failing to fully consider the facts in
the record. In its decision as to this factor, the district
court addressed only Mr. King. But, it should have also
addressed the other identified prospective witnesses,
including the other non-party individuals and firms
identified in Apple’s reply brief and initial disclosures.
See In re Volkswagen AG, 371 F.3d 201, 204–05 (5th Cir.
2004) (finding error in the district court’s disregard of
many third-party witnesses with relevant knowledge).
     The dissent finds no fault in the district court ignor-
ing record evidence. The dissent argues that district
courts have “discretion to disregard evidence offered for
the first time in a reply brief, and cites a string of cases to
support this contention. Dissent at 2-3. Yet, all but two
of the cases cited by the dissent focus on new arguments
first made in a reply brief. The two cases that address
new evidence, as opposed to new arguments, are district
court conclusions that new evidence presented in a reply
brief may be disregarded, but neither of these cases
involve venue transfer analysis under § 1404(a).
    The dissent also makes other arguments that it be-
lieves show that the district court did not err. Dissent at
3-5. Yet, these arguments are precisely what is lacking in
the district court’s opinion denying transfer. Indeed, the
district court’s order fails to mention the five other wit-
nesses identified by Apple in its reply brief, or that it
disregarded those witnesses because they were identified
in a reply brief. Either way, we are left with the conclu-
sion that the district court ignored the relevant evidence
that the dissent would have treated differently.
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6                                            IN RE APPLE, INC.




    The district court also erred in finding that the com-
pulsory process factor was neutral. This factor will weigh
heavily in favor of transfer when more third-party wit-
nesses reside within the transferee venue than reside in
the transferor venue. In re Genentech, Inc., 566 F.3d
1338, 1345 (Fed. Cir. 2009). Here, the record reflects that
six potential third-party witnesses reside within the
Northern District of California. This means that the
Northern District of California would have authority to
compel these witnesses to appear for both deposition and
trial. Fed. R. Civ. P. 45(c)(1)(A); In re Acer of Am. Corp.,
626 F.3d 1252, 1255 (Fed. Cir. 2010). Conversely, the
Eastern District of Texas would lack authority to compel
testimony from any of the identified witnesses. 1
    The district court further erred by failing to give
proper weight to the convenience of the witnesses factor.
Because it generally becomes more inconvenient and
costly for witnesses to attend trial the further they are
away from home, the Fifth Circuit established in In re
Volkswagen AG, 371 F.3d 201, 205 (5th Cir.2004) a “100–
mile” rule, which requires that “[w]hen the distance
between an existing venue for trial of a matter and a
proposed venue under § 1404(a) is more than 100 miles,
the factor of inconvenience to witnesses increases in direct
relationship to the additional distance to be traveled.” Id.
at 204–05. Apple identified at least eight prospective
party witnesses in the transferee venue with relevant



    1Whether these identified witnesses are willing to at-
tend trial or not, the location of the witnesses and costs
associated with travel to the Eastern District of Texas are
relevant to the convenience analysis. See Atl. Marine
Const. Co., Inc. v. U.S. Dist. Court for W. D. of Tex., 134 S.
Ct. 568, 581 n.6 (2013) (citing Piper Aircraft Co. v. Reyno,
454 U.S. 235, 241 n. 6 (1981)).
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 IN RE APPLE, INC.                                       7



material information, while EON failed to identify a
single prospective witness in the Eastern District of
Texas. On the Apple side of the balance are eight identi-
fied witnesses while on the EON side of the balance are
none. Such a strong showing of convenience weighs
heavily in favor of transfer. See, e.g., In re Nintendo Co.,
Ltd., 589 F.3d 1194, 1199–1200 (Fed. Cir. 2009).
     The district court also erred by improperly assessing
the weight of the practical problems factor. EON argues
that this case should be heard in the Eastern District of
Texas because the Eastern District of Texas has prior
experience with the patents and efficiencies would result
in keeping the related cases together. But judicial econo-
my is just one relevant consideration in determining how
administration of the court system would best be served
in deciding a transfer motion. See Van Dusen v. Barrack,
376 U.S. 612, 626–27 (1964). “The proper administration
of justice may be to transfer to the far more convenient
venue even when the trial court has some familiarity with
a matter from prior litigation.” In re Morgan Stanley, 417
Fed. App’x. 947, 949 (Fed. Cir. 2011). Although the
Eastern District of Texas has prior experience in constru-
ing this family of patents, so too does the Northern Dis-
trict of California. While transfer may mean that some of
the other related cases remain in the Eastern District of
Texas, multidistrict litigation procedures exist to mitigate
inefficiencies in this type of situation. In re EMC Corp.,
677 F.3d 1351, 1360 (Fed. Cir. 2012) (“Common pretrial
issues of claim construction and patent invalidity may
also be adjudicated together through the multidistrict
litigation procedures of 28 U.S.C. § 1407.”). While multi-
district litigation procedures and the Northern District of
California’s familiarity with one of the patents in suit do
not render the practical problems factor neutral, they do
mitigate some judicial economy concerns such that the
district court should not have weighed this factor so
heavily against transfer.
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8                                         IN RE APPLE, INC.




     The dissent argues that “[t]he majority does not point
to any factual or legal error by the district court with
regard to the judicial efficiency factor, but simply disa-
grees with the district court as to the importance of that
factor.” Dissent at 7. That is incorrect. The effect of the
combined errors noted above, in addition to the court’s
failure to account for significant, relevant evidence con-
cerning convenience and compulsory process, inevitably
led the district court to err in balancing the relative
convenience factors with the interests of justice, regard-
less of any assigned weight to the judicial efficiency
factor. In sum, the district court’s clear abuse of discre-
tion led it to reach the patently erroneous determination
that transfer is not warranted.
    Accordingly,
    IT IS ORDERED THAT:
     The petition for a writ of mandamus is granted, the
order denying the motion to transfer is vacated, and the
case is remanded with directions to grant Apple’s motion
to transfer.


                                   FOR THE COURT

                                   /s/ Daniel E. O’Toole
                                   Daniel E. O’Toole
                                   Clerk of Court
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           NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                   IN RE APPLE, INC.,
                        Petitioner.
                  ______________________

                         2014-143
                  ______________________

    On Petition for Writ of Mandamus to the United
States District Court for the Eastern District of Texas in
No. 6:12-cv-00943, Judge Leonard Davis.
                 ______________________

                      ON PETITION
                  ______________________


BRYSON, Circuit Judge, dissenting.
    I would deny the petition. The magistrate judge,
whose decision was affirmed by the district judge, careful-
ly considered all of the relevant factors bearing on the
transfer decision. Based on his analysis of those factors,
he reached a reasonable conclusion that transfer should
be denied. While the majority finds fault with the magis-
trate judge’s analysis in several particulars, the criticisms
are overblown. More fundamentally, the majority has
given short shrift to the extremely limited nature of our
reviewing authority in a proceeding such as this. As is
clear from Fifth Circuit law, which applies here, manda-
mus will be granted to overturn a decision on a transfer
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 2                                            IN RE APPLE, INC.




 motion only when the district court has clearly abused its
 discretion, resulting in a patently erroneous result. In re
 Volkswagen of Am., Inc., 545 F.3d 304, 310 (Fed. Cir.
 2008). I do not believe the transfer decision in this case
 reflects a “clear abuse of discretion” or comes even close to
 being “patently erroneous.”
     As the majority acknowledges, the magistrate judge’s
 opinion addresses each of the traditional factors bearing
 on the transfer decision, finding that two factors (conven-
 ience of the witnesses and relative ease of access to
 sources of proof) favored transfer, some factors were
 neutral, and one factor (practical problems) disfavored
 transfer. After balancing the relevant factors, the magis-
 trate judge concluded that “Apple has not shown that it is
 clearly more convenient for the parties and witnesses to
 transfer the instant case” to the Northern District of
 California.
      The majority first criticizes the court for not address-
 ing the availability of all six of the third-party witnesses
 or entities identified by Apple as being located in the
 Northern District of California. In its brief in the district
 court, Apple identified only one of those witnesses, Pat-
 rick King. The magistrate judge’s opinion fully addressed
 Mr. King’s situation, noting that Apple had not represent-
 ed that he would decline to appear voluntarily in Texas
 and that Apple had made no representations as to the
 general nature of his testimony.
      The majority does not take issue with the magistrate
 judge’s analysis in that respect. Instead, the majority
 criticizes the magistrate judge for not discussing the other
 five third-party witnesses and organizations, which Apple
 referred to for the first time in its reply brief in the dis-
 trict court. But it is well settled, in the Eastern District of
 Texas and elsewhere, that a district court has discretion
 to disregard evidence offered for the first time in a reply
 brief. See, e.g., Flooring Sys., Inc., v. Chow, 2013 WL
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 IN RE APPLE, INC.                                       3



 4674667, at *1 n.2 (E.D. Tex. Aug. 29, 2013); Miles
 Bramwell USA, LLC v. Weight Watchers Int’l, Inc., 2013
 WL 1797031, at *4 (E.D. Tex. Mar. 27, 2013); Nearstar,
 Inc. v. Waggoner, 2011 WL 817374, at *4 (E.D. Tex. Mar.
 2, 2011); Lawyers Title Ins. Corp. v. Doubletree Partners,
 L.P., 2009 WL 901128, at *2 n.1 (E.D. Tex. Mar. 30, 2009);
 Digital Generation, Inc. v. Boring, 869 F. Supp. 2d 761,
 771 (N.D. Tex. 2012); Narvaez v. Wilshire Credit Corp.,
 757 F. Supp. 2d 621, 633 n.11 (N.D. Tex. 2010); Brown v.
 Bridges, 2014 WL 2777373, at *2 (N.D. Tex. June 19,
 2014).
     If Apple had in mind third-party witnesses that it
 wanted to call but was concerned that it could not sub-
 poena them, it should have identified those witnesses in
 its motion. The reason that the witnesses appeared for
 the first time in Apple’s reply brief was that they were
 witnesses identified by EON, and thus presumably were
 witnesses that EON, not Apple, intended to call. An
 argument that a witness for the other side would be
 outside the court’s subpoena power is not a convincing
 basis for a party to seek transfer.
     There is a further problem with Apple’s reference to
 the five new witnesses and organizations to which it
 referred in its reply brief. Numerous cases have held that
 with respect to third-party witnesses, it is the burden of
 the party seeking transfer to show (1) that the witnesses
 would be unwilling to travel to the transferor district and
 (2) that the witnesses’ testimony would be important to
 the issues at trial. 1 A sampling of those cases follows:



    1  The willingness of third-party witnesses to attend
 trial has been regarded as important in myriad cases. In
 one of our cases, In re Barnes & Noble, Inc., 743 F.3d
 1381, 1383 (Fed. Cir. 2014), we found no error in the
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 4                                           IN RE APPLE, INC.




 Stephenson v. Game Show Network, LLC, 933 F. Supp. 2d
 674, 679 (D. Del. 2013) (“Given that defendants simply
 speculate that this non-party witness would be unwilling
 to travel, this factor weighs against transfer.”); FC Inv.
 Grp. LC v. Lichtenstein, 441 F. Supp. 2d 3, 14 (D.D.C.
 2006) (“When analyzing the convenience of parties and
 witnesses, a defendant must show that witnesses would
 be unwilling to testify in the [transferor district].”); Sam-
 sung Elecs. Co. v. Rambus Inc., 386 F. Supp. 2d 708, 718-
 19 (E.D. Va. 2005) (“The party asserting witness incon-
 venience has the burden to proffer, by affidavit or other-
 wise, sufficient details respecting the witnesses and their
 potential testimony to enable the court to assess the
 materiality of evidence and the degree of inconven-
 ience. . . . Additionally, the moving party must demon-
 strate ‘whether that witness is willing to travel to a
 foreign jurisdiction.’ Merely stating that potential wit-
 nesses reside beyond a forum’s subpoena power does little
 to assist the court in weighing the convenience of the
 witness and the necessity of compulsory process.”) (inter-
 nal quotation marks and citations omitted); Kiss My Face
 Corp. v. Bunting, 2003 WL 22244587, at *4 (S.D.N.Y.
 Sept. 30, 2003) (transfer denied where movant “failed to
 provide the Court with any affidavits from potential
 witnesses stating that such witnesses would not voluntar-
 ily appear absent transfer”); Thayer/Patricof Educ.



 district court’s imposing the burden on the defendant-
 movant to show that third-party witnesses would be
 unable or unwilling to travel. Moreover, the cases cited in
 the text treat a witness’s expression of willingness to
 appear as sufficient to overcome concerns that the witness
 is not subject to compulsory process within the transferor
 district.
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 IN RE APPLE, INC.                                        5



 Funding v. Pryor Res., Inc., 196 F. Supp. 2d 21, 33 (D.D.C.
 2002) (same); USES Mfg, Inc. v. Rocky Mountain Inst.
 Research, 94 F. Supp. 2d 218, 224 (D. Conn. 1999) (trans-
 fer movant did not state what non-party witnesses would
 testify about, “making it impossible for the Court to
 determine their relevance or importance” to the case, or
 “whether these witnesses would be unwilling to voluntari-
 ly travel to Connecticut, or would be unable to do so
 without extreme hardship”).
     Apple has not satisfied its burden in either of those
 two respects. Instead, it has simply listed the six wit-
 nesses without even suggesting that any of them would be
 unwilling to travel to Texas. In addition, of the five
 witnesses that the district court did not discuss, three are
 institutions, including two law firms. EON represented in
 the district court, however, that the individuals with
 knowledge in those two law firms live in Virginia, Florida,
 and Delaware, not in the Northern District of California.
 The other organizational “witness,” Intellectual Ventures,
 is a patent assertion entity. Apple has provided no infor-
 mation as to what anyone from that entity could offer at
 trial. Of the two human witnesses, the record shows that
 one of them, Lauren Battaglia, is associated with EON
 and has testified for EON on several occasions in the
 Eastern District of Texas, so there appears to be no issue
 of compulsory process as to her. And as to the last indi-
 vidual, the other patent prosecutor, Apple has not sug-
 gested what evidence he could provide, what its
 importance to the case would be, and whether he would
 balk at having to travel to Texas. 2



       2  In its petition, Apple adds a reference to another
 EON-related witness, who was not referred to in its reply
 brief in the district court. Obviously, the district court
 cannot be criticized for not having adverted to that wit-
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 6                                           IN RE APPLE, INC.




      The majority next criticizes the magistrate judge for
 “failing to give proper weight to the convenience of the
 witnesses factor.” The magistrate judge, however, found
 that the convenience of the witnesses favored transfer.
 The majority’s position thus seems to be not that the
 district court ignored that factor, or even erred in failing
 to find that it favored transfer; instead, the majority’s
 position seems to be that the district court did not weigh
 that factor heavily enough. That determination is not
 consistent with the role this court is supposed to play in
 reviewing district court transfer decisions on mandamus,
 where the district court’s decision must be respected
 unless it is “patently erroneous.”
      Finally, the majority concludes that the district court
 “erred by improperly assessing the weight of the practical
 problems factor.” The majority finds that the district
 court erred in weighing that factor because, “although the
 Eastern District of Texas has prior experience in constru-
 ing this family of patents, so too does the Northern Dis-
 trict of California.” In fact, however, as the district court
 found, the Eastern District of Texas has much greater
 familiarity with the patents than does the Northern
 District of California. While the Northern District of
 California has construed one of the asserted patents on
 one occasion, the Eastern District of Texas has construed
 all but one of the four asserted patents on multiple occa-
 sions, and the trial court there has been actively presiding
 over litigation involving three of the four patents-in-suit
 since 2008. Apple admits as much in its petition, where it
 acknowledges that the Eastern District of Texas “has




 ness, but in any event the witness is associated with
 EON, and there is no suggestion in Apple’s petition that it
 intends to call that individual as a witness.
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 IN RE APPLE, INC.                                          7



 construed the terms of the ’101 patent four times and the
 ’491 patent three times.” Petition at 20 n.5.
     The judicial efficiency factor was the most important
 to the district court, and with good reason. The Eastern
 District of Texas clearly has had much more experience in
 dealing with the set of patents at issue in this case than
 has the Northern District of California. Moreover, the
 Eastern District of Texas already has cases pending that
 are not being transferred and that involve those patents.
 Those considerations reasonably led the district court to
 find that “significant judicial economy will be realized if
 this Court retains the above captioned case,” and thus
 that the judicial efficiency factor disfavored transfer. The
 court’s finding as to the judicial efficiency factor is well
 supported and has been invoked as an important consid-
 eration bearing on the transfer decision. See In re
 Volkswagen of Am., Inc., 566 F.3d 1349, 1351 (Fed. Cir.
 2009) (“[T]he existence of multiple lawsuits involving the
 same issues is a paramount consideration when determin-
 ing whether a transfer is in the interest of justice.”); In re
 Vicor Corp., 493 F. App’x 59, 61 (Fed. Cir. 2012).
     The majority does not point to any factual or legal er-
 ror by the district court with regard to the judicial effi-
 ciency factor, but simply disagrees with the district court
 as to the importance of that factor. Once again, however,
 a judgment as to the relative importance of one of the
 transfer factors should not be the basis for taking the
 exceptional step of granting a writ of mandamus.

     In In re Vistaprint Ltd., 628 F.3d 1342 (Fed. Cir.
 2010), this court made precisely that point in a setting
 similar to the one before us today. In that case, the
 district court found that the convenience factors favored
 transfer but that considerations of judicial economy
 outweighed the convenience factors; the court therefore
 denied transfer. This court denied a request for manda-
 mus, noting that the transfer statute “balances a number
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 8                                           IN RE APPLE, INC.




 of case-specific factors, not just convenience,” and that it
 “commits the balancing determination to the sound dis-
 cretion of the district court.” Id. at 1346. The court
 added:
       Our reluctance to interfere is not merely a
       formality, but rather a longstanding recogni-
       tion that a trial judge has a superior oppor-
       tunity to familiarize himself or herself with
       the nature of the case and the probable tes-
       timony at trial, and ultimately is better able
       to dispose of these motions.
 Id. The court’s analysis in the Vistaprint case is equally
 applicable here and should lead to the denial of the peti-
 tion for mandamus.
     Even if the majority were correct that the district
 court did not adequately consider some of the factors
 bearing on the transfer decision, it is hard to understand
 why the remedy is to grant the writ and order the case
 transferred, rather than simply directing the district
 court to consider the factors that the court believes were
 ignored. The only explanation for the majority’s decision
 in this regard is that, while purporting to base its decision
 on the district court’s failure to consider all the evidence
 bearing on the transfer issue, the majority in fact has
 chosen simply to substitute its judgment for that of the
 district court as to whether transfer should be ordered.
 The record in this case does not, in my view, justify such a
 step.
     In sum, I cannot agree with the majority that man-
 damus is appropriate in this case, particularly in light of
 the very high barrier presented by the requirements for
 the issuance of a writ of mandamus, which is reserved for
 “extraordinary situations to correct a clear abuse of
 discretion or usurpation of judicial power.” In re Nintendo
 Co., 589 F.3d 1194, 1197 (Fed. Cir. 2009).
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 IN RE APPLE, INC.                                          9



      If we mean what we say when we say that mandamus
 is reserved for those cases in which the district court
 “failed to meaningfully consider the merits of the transfer
 motion,” Barnes & Noble, 743 F.3d at 1383, then we
 should surely deny the petition here. Even if the court
 should have adverted to the two witnesses and three
 institutions referred to for the first time in Apple’s reply
 brief, the rest of the court’s analysis is quite thorough; the
 court cannot fairly be charged with having failed to give
 “meaningful consideration” to the merits of the motion to
 transfer.
     I fear that the majority has committed the error that
 the Supreme Court warned against in Will v. United
 States, 389 U.S. 90, 98 n.6 (1967), where the Court cau-
 tioned that “Courts faced with petitions for the perempto-
 ry writs must be careful lest they suffer themselves to be
 misled by labels such as ‘abuse of discretion’ and ‘want of
 power’ into interlocutory review of nonappealable orders
 on the mere ground that they may be erroneous.” See also
 In re Volkswagen of Am., Inc., 566 F.3d at 1351 (“A sug-
 gestion that the district court abused its discretion, which
 might warrant reversal on a direct appeal, is not a suffi-
 cient showing to justify mandamus relief.”); In re
 Volkswagen of Am., Inc., 545 F.3d at 312 (“But—and we
 stress—in no case will we replace a district court’s exer-
 cise of discretion with our own; we review only for clear
 abuses of discretion that produce patently erroneous
 results.”).
     I respectfully dissent from the order granting the writ
 of mandamus.
