Patent case transferred where no infringing acts in the district

Fifth Generation Computer Corporation v. International Business Machines Corporation, 9:08cv00205 (Feb. 17, 2009)
Judge: Ron Clark
This is Judge Clark's first venue ruling post VW Tech, and after analyzing the private and public interest factors, he concluded that transfer was warranted.  The public interest factors were a wash, with one in favor, one against, and two neutral.  Two of the private factors nudged the court slightly towards transfer, with one neutral and one slightly against.  But the other two – the relative ease of access to sources of proof and the cost of attendance for witnesses – both weighed "fairly heavily" in favor of transfer. "Key to the court’s decision," Judge Clark wrote, "are the facts that no (accused products) have been sold in Texas; no act of infringement has been identified as occurring in the Eastern District; only one potential witness has been identified as having any connection to Texas at all; multiple potential witnesses are located in or near the Southern District of New York ... and both parties have their principal places of business in the Southern District. Although other witnesses and evidence may be located outside of New York, (Plaintiff) fails to specifically identify any such individuals or documents to the court. Under these facts, transfer to the Southern District of New York is appropriate."