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Georgia IP Litigation: July 2013

BLOGS: Georgia IP Litigation

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Tuesday, July 30, 2013, 10:06 AM

Northern District of Georgia Home to Nine Patent Infringement Complaints Filed by CTP Innovations

On June 28, 2013, CTP Innovations, LLC (“CTP”) filed nearly identical patent infringement complaints against nine commercial printing businesses. These complaints, filed in the Northern District of Georgia, allege that the companies infringe two CTP patents, U.S. Patent Nos. 6,611,349 (the ‘349 Patent) and 6,738,155 (the ‘155 Patent). Georgia is not the only location CTP has been active in litigation; two weeks before filing these actions CTP filed multiple suits in Texas (14 complaints) and Tennessee (12 complaints) asserting the same causes of action.

The ‘349 Patent, issued on August 26, 2003 and titled “System and Method of Generating a Printing Plate File in Real Time Using a Communication Network,” and the ‘155 Patent, issued on May 18, 2004 and titled “System and Method of Providing Publishing and Printing Services Via a Communications Network,” are printing and publishing systems which generate printing plate-ready files from data provided remotely, and provide prepress and content management services in real time using a disclosed communication network, respectively. CTP appears to be a non-practicing entity that does not make or sell any products, or perform any methods, covered by the two patents.

According to company records CTP formed on January 1, 2013, and immediately began sending letters to businesses throughout the country notifying them of potential infringement.[1] In a form letter sent to multiple alleged infringers, CTP listed various actions which it considered to infringe one or more claims of its patents and offered a license to the patents if the recipients acted within two weeks and paid a lump sum of $75,000. Information online suggests that many recipients ignored the letter, believing CTP to be hoping to force less well-heeled printing companies into licensing agreements in lieu of litigating.[2] The Printing Industries of America even addressed the situation in a notice, calling CTP’s efforts “reprehensible” and promising to form a strategy on behalf of the smaller member companies facing the infringement allegations.[3]

The following cases were filed on June 28, 2013 in the U.S. District Court for the Northern District of Georgia, Atlanta Division, and assigned to U.S. District Court Chief Judge Julie E. Carnes:

CTP Innovations, LLC v. Benson Integrated Mktg. Solutions, Inc., No. 1:13-cv-02166-JEC
CTP Innovations, LLC v. Datamatx, Inc., No. 1:13-cv-02167-JEC
CTP Innovations, LLC v Meyers Printing Co., Inc., No. 1:13-cv-02168-JEC
CTP Innovations, LLC v. Primary Color Sys. Corp., No. 1:13-cv-02169-JEC
CTP Innovations, LLC v. Progress Printing Co., No. 1:13-cv-02170-JEC
CTP Innovations, LLC v. Rohrer Corp., No. 1:13-cv-02171-JEC
CTP Innovations, LLC v. SleeveCo, Inc., No. 1:13-cv-02172-JEC
CTP Innovations, LLC v. Tucker-Castleberry Printing, Inc., No. 1:13-cv-02173-JEC
CTP Innovations, LLC v. Walton Press, Inc., No. 1:13-cv-02174-JEC

CTP claims that each defendant’s alleged infringement is willful, and under 35 U.S.C. §§ 284 and 285 seeks relief, including damages, costs of litigation and attorneys’ fees, and injunctive relief. 

The author would like to thank summer associate Emily Scheible for her substantial contribution to this post. 
[3] http://whattheythink.com/news/64146-pias-makin-sends-member-notice-patent-trolling/

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Monday, July 29, 2013, 5:49 PM

Repeat Trademark Infringer Slammed with Order to Pay $7.8 Million in Sanctions

On June 5, 2013, Judge Timothy C. Batten, Sr. of the Northern District of Georgia issued a Final Order of Contempt (“Final Order”), holding GCA Electronics, LLC d/b/a Unlockcellular.com and Gunawan Lie (“Defendants”) in civil contempt of court and sanctioning them $7.8 million, with interest, payable to the Plaintiff, TracFone Wireless, Inc. (“TracFone”). The Court described the Defendants’ violations of a previous Final Judgment and Permanent Injunction as “intentional, fraudulent, and willful.” The Defendants’ conduct, when coupled with a compensatory liquidated damages provision contained in the Final Judgment and Permanent Injunction, and the “severe harm” suffered by TracFone, was sufficient to warrant such sanctions, costs, and attorneys’ fees to TracFone.

In 2007, TracFone, the largest provider of prepaid wireless telephone service in the United States, filed suit against Defendants alleging that their sale of “unlocked” TracFone prepaid cell phones infringed TracFone’s trademarks and constituted unfair competition in violation of the Lanham Act.  The District Court entered a Final Judgment and Permanent Injunction against Defendants in 2008 finding that Defendants had willfully infringed upon TracFone’s trademarks.

The Permanent Injunction enjoined Defendants from “purchasing, selling, shipping, transferring, or altering in any way” all “TracFone/NET10 Prepaid Phones.” It further enjoined Defendants from engaging in any purchase or sale of the “TracFone/NET10 Unlocking Solutions.” The injunction applied to all current, previous, and future phones sold by TracFone, and provided for payment of compensatory liquidated damages to TracFone in the amount of $5,000 per violation of the “Prepaid Phone” provision. TracFone’s prepaid phones retail from $5 to $80. The injunction similarly provided for $20,000 in damages per violation of the “Unlocking Solutions” provision.

TracFone discovered, through its own investigation, that the Defendants had been continuously violating the terms of the Permanent Injunction and in January 2012 filed a Motion to Reopen and for Contempt based on the Defendants’ alleged misconduct.  In September of 2012, the Court entered an order reopening the case with respect to Defendants, held them in civil contempt, and granted expedited discovery to determine the scope of Defendants’ violations. Through discovery, TracFone was able to establish the (1) scope of Defendants’ violations and (2) that the violations were willful. The Court subsequently ordered the Defendants pay $7.8 million in sanctions.

The Court found, and the Defendants did not deny, that the Defendants had knowingly violated the “Prepaid Phones” and “Unlocking Solutions” provisions at least 4 and 386 times, respectively. The Court also found that the Plaintiff’s injuries consisted of attorneys’ fees, the cost of hiring an undercover investigator, loss of revenue, and loss of business reputation and goodwill among consumers.

Because the Defendants had been in civil contempt as of September 2012, the Court noted that it had “wide discretion to fashion a remedy.”[1] Under Federal Rule of Civil Procedure 11(c)(4), a sanction “may include nonmonetary directives; an order to pay a penalty into court; or, . . . an order directing payment to the movant of part or all of the reasonable attorneys’ fees and other expenses directly resulting from the violation.” Although the Court noted its wide discretion to deal with civil contempt, outside of the $64,000 awarded in attorneys’ fees and costs, it merely enforced the compensatory liquid damages provision of the Final Judgment and Permanent Injunction: TracFone was entitled to $20,000 per “Unlocking Solutions” violation, and $5,000 per “Prepaid Phone” violation.

The case is TracFone Wireless, Inc. v. GCA Electronics, LLC et al., No. 1:07-cv-03084-TCB, in the United States District Court for the Northern District of Georgia, Atlanta Division.

The author would like to thank summer associate John Gerl for his substantial contribution to this post.

[1] Citing McGregor v. Chierico, 206 F.3d 1378, 1385 n.5 (11th Cir. 2000).

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11th Circuit Retains Jurisdiction in “Contract” Case, But Construes Patent Claims and Opines on Infringement

You may think that because your litigation involves significant patent issues, such as the construction of claim terms and determination of infringement, you will have recourse at the Federal Circuit if the district court rules against your company or client. Not so fast. The Eleventh Circuit Court of Appeals issued an opinion finding that it had jurisdiction over an appeal involving certain breach of contract claims that, in order to be resolved, required a determination of whether a party’s products infringed several patents.

Background Facts

Rad Source Technologies, Inc., (“Rad Source ”), a Florida corporation with its principal place of business in Georgia, participated in the development of irradiation technology contained in the RS 3000 blood irradiation device. Rad Source was the first to replace radioactive isotopes with X-rays to irradiate blood. The first device, the RS 3000, was introduced in 1999 as a one blood bag device and by 2001 was modified to hold 2 or 3 bags. Rad Source obtained three patents covering the device (U.S. Patent Nos. 6,212,255, 6,489,099, and 6,614,876). According to the 11th Circuit opinion, in the late 1990s Rad Source began work on generating a three-dimensional field of X-rays through a long tube, for which it obtained two new patents referred to only as “the ‘147 and ‘686” (the “Long Tube Technology”). The author confirmed that these terms referred to U.S. Patent Nos. 7,346,147 and 7,515,686.

In the late 1990s Rad Source approached MDS (Canada) Inc. (“MDS”) (now known as Nordion (Canada), Inc.), a Canadian company specializing in detection, prevention, and diagnosis of disease experienced with gamma source irradiation, but MDS expressed no interest in the RS 3000 technology. After 2002, MDS inquired about acquiring an interest in the RS 3000, and the parties executed a license agreement on August 20, 2003 (the “License Agreement”). MDS was cleared to market and sell the RS 3000 in the United States on September 26, 2003. The funds received under the License Agreement allowed Rad Source to pursue its new Long Tube Technology.

In 2007 the parties discussed licensing the Long Tube Technology, but reached no agreement. In December of that year MDS requested that Rad Source approve an assignment of the License Agreement to Best Medical International, Inc. (“Best”). Rad Source refused but left the door open to approve after review of documentation, which MDS did not furnish. A conference call in January 2008 did not end with agreement and MDS stated it would go forward with a sublicense to Best over Rad Source’s objection. MDS executed a sublicense agreement with Best in April 2008 and transferred a building and 155 employees to Best in May 2008 by way of an asset purchase. Rad Source believed a default notice would be futile, time-consuming, and expensive and did not send one until 2011 – over a year after MDS and Best filed suit.

Rad Source began marketing its new RS 3400 product based on the Long Tube Technology in 2009 as “a direct medical upgrade of the Rad Source 3000 research and industrial irradiator.” Best and MDS sent a cease and desist letter shortly thereafter and commenced litigation with MDS seeking a temporary restraining order which was granted on October 27, 2009. When they later learned that Rad Source had not paid the maintenance fees on the ‘255 patent they sued Rad Source for breach of the License Agreement. Rad Source counterclaimed. In January 2011, Rad Source sent a termination notice to MDS, which MDS and Best challenged as having been waived. Motions for partial summary judgment by both parties were denied and a ten-day bench trial followed in April 2011. The District Court ultimately ruled that the License Agreement remained in effect, but held the RS 3400 does not embody the Patents.

11th Circuit Opinion

On these facts, the 11th Circuit recognized controlling statutory authority that “the Federal Circuit [has] exclusive jurisdiction ‘of an appeal from a final decision of a district court of the United States . . . if the jurisdiction of that court was based in whole or in part, on section 1338.” The 11th Circuit further acknowledged that 28 U.S.C. § 1338 “grants federal district courts original jurisdiction ‘of any civil action arising under any Act of Congress related to patents.’” The 11th Circuit then went on to hold that the District Court did not have “patent jurisdiction,” but only diversity jurisdiction under 28 U.S.C. § 1332 and supplemental jurisdiction under 28 U.S.C. § 1367. The 11th Circuit nevertheless acknowledged that “[t]o succeed on [its] claim, [MDS] must prove that the RS 3400 infringes the licensed patents.” However, the panel then found “the question of patent infringement here is not substantial.”

The 11th Circuit examined 28 U.S.C. § 1338 and found that, while patent construction and a finding of infringement or non-infringement was necessary to determine the state law claim for breach of contract brought by MDS and Best, the resolution of that patent claim was not substantial as required by Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314, 125 S.Ct. 2363, 2368, 162 L.Ed.2d 257 (2005). Grable involved the question of whether a state’s quitclaim deed was valid or not and was subject to the jurisdiction of the federal courts merely because there was a question whether an Internal Revenue Service gave adequate notice as required by federal law. Grable, however, found in favor of federal jurisdiction and did not involve patents or 28 U.S.C. § 1338. In Grable the issue was also addressed in the District Court, where the Rad Source decision does not reveal that any dispute over federal jurisdiction under 28 U.S.C. § 1338 arose at the District Court level. The opinion reached its conclusion that the patent claim was not substantial, finding that the patent issue involved in this case was not of importance to the federal system as a whole based on the three factors: (1) a pure question of law is more likely to be a substantial federal question (and patent cases are a mixture of fact and law and in this case the facts were more important than the law); (2) the factor of the patent law ruling controlling the outcome in other cases weighs against the case being substantial; and (3) there is no strong interest of the government here in litigating in a federal forum.

The opinion relies heavily on Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988). In Christianson the Supreme Court decided a dispute between the Federal and Seventh Circuits by ruling in favor of the expressed opinion of the Federal Circuit that it lacked jurisdiction by reversing its decision and remanding the case for transfer to the Seventh Circuit. The Supreme Court ruled that a case was not “one ‘arising under’ federal patent law” unless “’the plaintiff . . . set up some right, title, or interest under the patent laws, or at least makes it appear that some right or privilege will be defeated by one construction, or sustained by the opposite construction, of those laws.’” Id. at 807-08, 2173, 824 (quoting Henry v. A. B. Dick Co., 224 U.S. 1, 16, 56 L.Ed. 645, 32 S.Ct. 364 (1912)). Christianson went on to hold: “If ‘on the face of a well-pleaded complaint there are . . . reasons completely unrelated to the provisions and purposes of [the patent laws] why the [plaintiff] may or may not be entitled to the relief it seeks,’ . . . then the claim does not ‘arise under’ those laws.” Id., at 810, 2174, 826 (quoting Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 26, 77 L.Ed.2d 420, 103 S.Ct. 2841 (1983)).

The Christianson Court found that “[t]he patent-law issue, while arguably necessary to at least one theory under each claim, is not necessary to the overall success of either claim.” Christianson at 810, 2174-2175, 826. The determining factor for the Christianson Court appeared to be set forth in the following finding: “Since there are ‘reasons completely unrelated to the provisions and purposes’ of federal patent law why petitioners ‘may or may not be entitled to the relief [they] see[k]’ under their monopolization claim, the claim does not ‘arise under’ federal patent law.” Id., at 812, 2175-2176, 827-828 (citing Franchise Tax at 26). In contrast to Christianson, the 11th Circuit acknowledges that MDS cannot be successful on its claim to preclude the marketing of the RS 3400 unless that product infringes the licensed patents. While finding that there was no alternative theory under which plaintiffs could proceed to success other than by a finding of patent infringement, the 11th Circuit nonetheless held that its necessary implementation of patent construction and the patent laws, “the question of patent infringement” was not substantial.

Points of Interest

The 11th Circuit ruling raises the prospect of forum shopping by appellants in matters where patent construction, validity, and infringement issues must be decided, but where the appellant can make an argument that those determinations are not substantial and are unlikely to affect future litigants. The 11th Circuit found that “[b]oth the highly specialized nature of patent claims and the niche market for blood irradiator devices suggest that the resolution of this issue is unlikely to impact any future constructions of claims.” By their very nature patents are the first in line of new technologies and it is rarely, if ever, known how far into the market place a particular innovation will extend. As a result, if may be inapt to suggest that a claim construction or infringement determination relating to patented inventions in a highly specialized field will have no impact on future claims, even in unrelated technological fields.

The takeaway for corporate and outside counsel is to make sure that patent claims are well-plead, carefully delineated, and clearly important to a case, if your company wants to ensure that the final decision on those patent claims are determined by the judicial body charged with expertise in that area (the Federal Circuit). The case had additional complex issues relating to the state law claims resulting in a certified question to the Florida Supreme Court. This blog has focused on the jurisdictional and intellectual property issues.

The case is MDS (Canada) Inc., et al. v. Rad Source Technologies, Inc., No. 11-15145, --- F.3d ---, 2013 U.S.App. LEXIS 13447 (11th Cir. July 1, 2013).

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Friday, July 19, 2013, 10:31 AM

Recent Patent Cases Filed in the Northern District of Georgia

Here is a survey of recent patent cases filed in the Northern District of Georgia.  A similar survey of recent trademark and copyright cases will be published soon.

Medical Device Patent Suit

On May 23, 2013, Ivera Medical Corporation ("Ivera"), based in Carlsbad, California, filed suit against The Bimeco Group, Inc. ("Bimeco"), based in Peachtree City, Georgia, alleging that Bimeco's DualCap Solo product, a device for disinfecting and protecting the entry port of IV valves to prevent bloodstream infections in hospital patients, infringes three Ivera patents directed to cover its Curos® Port Protector product.  Ivera asserts U.S. Patent Nos. 7,780,794, 7,985,302, and 8,206,514, all titled "Medical Implement Cleaning Device."

Bimeco's DualCap product
On July 10, Bimeco filed its answer and also filed a motion to transfer the action to the Southern District of California, where two related actions are pending.  In a somewhat atypical situation, Bimeco does not argue for a transfer based on its location and the inconvenience it would bear litigating in Georgia (nor could it, being that it is a Georgia corporation based in the Northern District), but rather it alleges that Ivera improperly filed this "mirror-image" lawsuit in Georgia to avoid the likely results in the California actions.  Further, Bimeco argues that every one of the asserted claims have been rejected upon reexamination by the PTO.  Bimeco asks the Court to transfer the case to the Southern District of California in order to preserve judicial economy, or in the alternative, to stay the litigation pending the resolution of the California matter and the proceedings at the PTO.

The case is Ivera Medical Corporation v. The Bimeco Group, Inc., Case No. 3:13-cv-00086-TCB, United States District Court for the Northern District of Georgia, Newnan Division, and is assigned to Judge Timothy C. Batten.

Holographic Security Tags

On May 24, J. Patton Sports Marketing, Inc. ("J. Patton"), based in Duluth, Georgia, filed a complaint in the Northern District of Georgia against anti-counterfeiting company OpSec Security, Inc. ("OpSec"), based in Boulder, Colorado, alleging that OpSec's micro-optic hang tag products infringe U.S. Patent No. 6,952,994 (the '994 patent), titled "Identification Devices and Methods for Producing the Identification Devices."  

J. Patton claims to be a "leading provider of brand protection services, specializing in patented holographic security technologies and digital asset management."  According to the complaint, J. Patton has produced over 1.3 billion tags and labels for companies in various industries, including "Sports Marketing, Pharmaceuticals, Manufacturing, and Not-for-Profit Organizations."  J. Patton alleges that it placed OpSec on written notice of the '994 patent in August 2012, and that OpSec's continued manufacture and sale of its security hang tags constitutes willful infringement.

The case is J. Patton Sports Marketing, Inc. v. OpSec Security, Inc., Case No. 1:13-cv-01752-TWT, United States District Court for the Northern District of Georgia, Atlanta Division, and is assigned to Judge Thomas W. Thrash, Jr.

Brinkmann Accused of Infringing Convertible Grill Patent
Brinkmann's Model No. 810-3551-0,
one of 17 accused grill models.

On May 28, Spanish companies Corprecitec, S.L. ("Coprecitec") and Copreci, S. Coop. ("Copreci"), and US subsidiary Mondragon Components U.S.A., Co. ("Mondragon"), based in Marietta, Georgia, filed suit against The Brinkmann Corporation ("Brinkmann"), based in Dallas, Texas, alleging that a number of Brinkmann multi-burner convertible grills infringe U.S. Patent No. 8,449,289 (the '289 patent), titled "A Multi-Gas Appliance."  Coprecitec, subsidiary of Copreci, claims to be a leading developer and manufacturer of components for household and professional appliances.  Plaintiffs allege that Brinkmann manufactures, uses, sells, offers to sell, and/or imports grills capable of converting between using propane and natural gas, in violation of certain claims of the '289 patent.

On June 17, Judge Totenberg issued an order appointing Sumner Rosenberg as Special Master to perform the certain duties, including to preside over discovery disputes and to conduct a Markman hearing.  Typically an appointment would not be made until later in the case, but Judge Totenberg reviewed the complaint and determined that the '289 patent appeared to be closely related to the patents in suit in another case brought in the Northern District of Georgia by the Plaintiffs against Brinkmann, Coprecitec, S.L. et al. v. The Brinkmann Corp., Case No. 1:12-cv-1480-AT.  Further, in correspondence between counsel for the parties and the Court, Brinkmann indicated that it planned to file for inter partes review of the '289 patent and that it planned to seek a stay of the action.  Plaintiffs indicated that they did not oppose a stay pending inter partes review.  In addition to the typical duties of the Special Master, the Court directed Mr. Rosenberg to consider whether to consolidate the two related cases and whether to close or stay the current action pending resolution of an inter partes review.

The case is Coprecitec, S.L. et al. v. The Brinkmann Corp., Case No. 1:13-cv-01781-AT, United States District Court for the Northern District of Georgia, Atlanta Division, and is assigned to Judge Amy Totenberg.

Declaratory Judgment Action Relating to Amino Acid Compound Patents

On June 18, after first filing an original complaint on June 4, John's Lone Star Distribution, Inc. ("Lone Star"), based in Kennesaw, Georgia, and Purus Labs, Inc. ("Purus"), based in Dallas, Texas, filed an amended complaint in the Northern District of Georgia against Thermolife International, LLC ("Thermolife"), based in Venice, California, requesting that the Court enter a declaratory judgment that Lone Star and Purus do not infringe U.S. Patent Nos. 8,455,531 (the '531 patent), issued on June 4, 2013, and 8,466,187 (the '187 patent), issued on June 18, 2013, both titled "Amino Acid Compounds," and that the '531 and '187 patents are invalid, and further that the '187 patent is unenforceable.

According to the amended complaint, Thermolife's counsel sent several cease and desist letters to Lone Star and Purus alleging that Lone Star and Purus's activities read on claims of two patent publications that ultimately issued as the '531 and '187 patents and announcing an intention to sue Lone Star and Purus upon patent issuance.  The amended complaint also includes detailed allegations of inequitable conduct with respect to the '187 patent and asks the Court to declare it unenforceable.  Plaintiffs claim that a letter was sent -- presumably by counsel for Lone Star and Purus -- to Thermolife's counsel during the pendency of the two patent applications alerting counsel to a certain prior art reference, U.S. Patent No. 5,543,430 to Kaesemeyer, which the sender claimed anticipated every claim of the pending applications.  According to the amended complaint, Thermolife's counsel cited Kaesemeyer patent in an IDS filed in one of the pending applications but not the other, and therefore that it intentionally withheld the reference from the PTO.  Lone Star and Purus asks the Court to declare the case exceptional for these reasons and to award the Plaintiffs their attorneys' fees and costs. 

The case is John's Lone Star Distribution, Inc. et al. v. Thermolife Int'l, LLC, Case No. 1:13-cv-1857-SCJ, United States District Court for the Northern District of Georgia, Atlanta Division, and is assigned to Judge Steve C. Jones.

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Wednesday, July 3, 2013, 5:17 PM

Patent Case Denied Transfer- Northern District of Georgia Agrees with Southern District of Florida that the Value of Document Location in Considering Transfer Motions Is Accorded Little Weight in Electronic Era

Acceleron, LLC, a Delaware limited liability company claiming a principal place of business in Atlanta, filed suit against Dell Inc., headquartered in Round Rock, Texas, alleging infringement of Patent No. 6,948,021 (the “’021 patent”), which deals with a hot-swappable server module in a computer network. On June 12, 2013, Judge Timothy Batten, Sr. of the Northern District of Georgia denied Dell’s motion to transfer the case to the Western District of Texas.   
Acceleron is the owner by assignment of the ‘021 patent and asserts that Dell makes and uses products infringing that patent. Dell moved to transfer the case to the Western District of Texas contending key witness convenience, document location, sources of proof there, and a greater local interest in the case mandated the move. Under 28 U.S.C. § 1404(a), for convenience of the parties, the court may transfer a case to any other district that the case might have been brought. Here, neither party denied the Western District of Texas was a proper venue.  
The Court delineated nine relevant factors. (For more on these factors, see our previous post here). The Court found two factors weighing against transfer and only one factor that might lean in favor of Dell - the location of the documents. The Court pointed out that the 11th Circuit had yet to weigh on the significance of the location of documents in the new electronic world. The Southern District of Florida’s consideration of the issue was quoted with favor: “In a world with fax machines, copy machines, email, overnight shipping, and mobile phones that can scan and send documents, the physical location of documents is irrelevant.” [1]
The most important factor to the Court’s decision was the convenience of the witnesses. While Dell argued that the Western District of Texas was a more convenient forum for their witnesses, the Court disagreed for two reasons. First, Dell’s failure to specifically identify the testifying witnesses allowed the Court to conclude it was unaware if those witnesses still resided in Texas.  Further, because Dell acknowledged the witnesses were its own employees, the Court accorded less deference. The Court presumed employees to be more willing to testify in another forum, due to their alignment with the employer. [2] Acceleron’s five identified nonparty witnesses residing in the Northern District of Georgia, two of which were the inventors of the ‘021 patent, outweighed Dell’s unidentified employee witnesses.   
After finding that the convenience of the witnesses and the relative means of the parties weighed against transfer, the location of the documents only slightly weighed in favor of transfer, and all other factors remained neutral, the Northern District of Georgia denied Dell’s motion for transfer.

The author would like to thank Emily Scheible for her substantial contributions to the composition of this post.

            This order was filed 6/12/13 in Acceleron, LLC v. Dell, Inc., No. 1:12-cv-4123-TCB, in the U.S. District Court for the Northern District of Georgia, Atlanta Division, assigned to U.S. District Judge Timothy C. Batten, Sr.  Related post on Acceleron’s complaint here.

[1] Microspherix LLC v. Biocompatibles, Inc., No. 9:11-cv-80813m 2012 WL 243764, at *3 (S.D. Fla. Jan. 25, 2012). 
[2] Ramsey v. Fox News Network, LLC, 323 F. Supp. 2d 1352, 1356 (N.D. Ga. 2004).

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