In Re Vertical Computer Systems, Inc.

.NOTE: This order is nonprecedential United States Court of AppeaIs for the FederaI Circuit IN RE VERTICAL COMPUTER SYSTEMS, INC., Petiti0ner. ‘ Misce1laneous Docket No. 985 On Petition for a Writ of Mandamus to the United States District Court for the Northern District of Ca1ifor- nia in case no. 10-CV-4645, Judge Richard Seeliorg. ON PETITION Before BRYSON, LlNN, and PROST, Circuit Judges. PROST, Circuit Judge. 0 R D E R Vertica1 Computer Systems, Inc. seeks a writ of man- damus directing the United States District Court for the Northern District of Ca1ifornia to vacate its l\/lay 2, 2001 order denying Vertica1’s renewed motion to transfer the case to the District Court for the Eastern District of Texas and remand with instructions to transfer the case. Inter- woven, Inc. opposes Verticalrep1ies. IN RE V`ERTICAL COMPUTER SYSTEMS 2 The remedy of mandamus is available only in ex- traordinary situations to correct a clear abuse of discre- tion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed. Cir. 1988). A party seeking a writ bears the burden of proving that it has no other means of attaining the relief desired, Mallard u. U.S. Dist. Court for the Sou.thern Dist. of I0wa, 490 U.S. 296, -309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is "clear and indisputable," Alliecl Chem. Corp. o. Daifl0n,, Inc., 449 U.S. 33, 35 (1980). A court may deny mandamus relief "even though on normal appeal, a court might find reversible error." In re Cordis Corp., 769 F.2d 733, 737 (Fed. Cir. 1985). In January 2009, Vertical sent a letter to Interwoven relating to one of Vertical's patents at issue, and two months later, the parties met for licensing discussions No action was taken again until August 2010, when Vertical sent another letter to Interwoven to renew dis- cussions, this time concerning that patent and an addi- tional application. In response, Interwoven filed a declaratory judgment action regarding the two patents in the Northern District of California in October 2010 The next month, Vertical filed a complaint against Interwoven and other defendants in the Eastern District of Texas. The Eastern District of Texas transferred the portion of the action against Interwoven to the Northern District of California. Vertical argues that this court should eschew the first-to-file rule in favor of its complaint in Texas. The general rule favors the first-filed action Genen- tech, In,c. u. Eli Lilly & C'o., 998 F.2d 931, 937 (Fed. Cir. 1993). Vertical argues that Interwoven’s declaratory judgment action is merely an anticipatory filing and should not be given priority. While the race to the court- house is one factor to consider, the court also considers other factors such as the convenience and availability of 3 IN RE VERTICAL COMPUTER SYSTEMS the witnesses possibility of consolidation with related litigation, and considerations relating to the real party in interest. See Genentech, 998 F.2d at 939 Vertical has not demonstrated that it is entitled to a writ. Vertical has not demonstrated that the district court is clearly and indisputably incorrect. The district court properly considered all of the relevant factors. Indeed, Vertical does not seek mandamus to direct the Northern District of California to dismiss the first-filed action, but seeks only transfer. Concerning the factors other than whether the filing was premature, although Vertical is based in Austin, it does employ at least one corporate director in the Northern District of California. The Northern District of California district court also concluded that judicial economy would not be compro- mised because the case that will proceed in the Eastern District of Texas against the other defendants involves significantly different products and issues. Accordingly, IT ls ORDEREo THAT: The petition for writ of mandamus is denied 1N ss vERT1cAL coMPU'rER sYsTEMs AUG 1 1 2011 4 FOR THE COURT /sf J an Horbaly Date J an Horbaly cc; Bijal V. Vakil, Esq. Vasilios D. Dossas, Esq. Clerk United States D`st Clerk , 1 riot Court for the Northern D. . . . 1str1ct of Cal1forn1a s24 FlLED e.s. count of APPEALs FOR THE FEDERAL CIRCU|T AUG 1 7 2011 lAN HORBALY CLERK