Abstrax, Inc. v. Sun Microsystems, Inc., 2009 WL 2824581(E.D.Tex. Aug 28, 2009) (NO. 2:07-CV-333)
Judge: Chad Everingham
Holding: Renewed Motion to Transfer Venue GRANTED
This was a renewed motion to transfer venue. The original motion was filed November of 2007, and was denied without prejudice to refiling in order to brief the new standards set forth in the en banc In re Volkswagen case. The renewed motion was filed last October by Sun. The Sun case was consolidated for purposes of discovery and claims construction with a similar case against Gateway (now no longer a party)and Dell, but those defendants did not challenge venue, and that case remains in the Eastern District.
Judge Everingham noted that Sun was located in the ND Cal and noted the case's similarity to the facts in the Federal Circuit's recent In re Genetech opinion, and lack of similarity to the Federal Circuit's In re Volkswagen opinion, which involved several consolidated cases against numerous defendants. (Watch carefully - the Fifth Circuit's VW is a mandamus grant, the Fed Circuit's is a mandamus denial). Significant to the Court's analysis was that Sun agreed to be bound by the Texas court's Markman ruling, and discovery was nearly complete, thus the judicial economy considerations of keeping the cases consolidated in the Eastern District had already been satisfied and the limited consolidation did not require keeping both cases in Texas.