Case: 22-158 Document: 12 Page: 1 Filed: 09/23/2022
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`NOTE: This order is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
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`In re: WENGER S.A.,
`Petitioner
`______________________
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`2022-158
`______________________
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`On Petition for Writ of Mandamus to the United States
`District Court for the Western District of Texas in No. 6:21-
`cv-00453-ADA-DTG, Judge Alan D. Albright.
`______________________
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`ON PETITION
`______________________
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`Before DYK, REYNA, and TARANTO, Circuit Judges.
`REYNA, Circuit Judge.
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`O R D E R
` Wenger S.A. petitions for a writ of mandamus to direct
`the United States District Court for the Western District of
`Texas to transfer this patent infringement suit to the
`United States District Court for the Southern District of
`Florida. Swissdigital USA Co., Ltd. opposes.
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`Swissdigital owns patents covering bags for convenient
`charging of personal devices and a sheath incorporated into
`a bag that performs the same task. In September 2021,
`Swissdigital filed this action in the Western District of
`Texas against Wenger for offering to sell, selling, and
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`Case: 22-158 Document: 12 Page: 2 Filed: 09/23/2022
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`IN RE: WENGER S.A.
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`inducing others to offer to sell and sell allegedly infringing
`USB-charging backpacks with the “SWISSGEAR” trade-
`mark through Wenger’s website. In March 2022, Wenger,
`a
`company based
`in Switzerland, moved under
`28 U.S.C. § 1404(a) to transfer to the Southern District of
`Florida, the headquarters location of a non-party that
`Wenger contends designs, coordinates manufacture of, and
`sells the accused products. Appx068.
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`The district court, adopting the recommendation of the
`magistrate judge, denied Wenger’s motion. The court con-
`cluded that Wenger had failed to show the Southern Dis-
`trict of Florida is clearly more convenient, noting, among
`other things, Wenger had not identified employees of the
`Florida non-party who would testify, and “[t]he parties do
`not have a specific presence in” the transferee forum.
`Appx005–06, 012. The court further found that the timing
`of the transfer request weighed against transfer, noting
`that during the time between the filing of the complaint
`and the motion, the court and the parties “ha[d] expended
`considerable resources on this case,” and hence transfer
`“would result in a waste of these resources and the likely
`need to repeat many of the steps already completed in this
`forum.” Appx010. After the district court overruled its ob-
`jections, Wenger filed this petition. We have jurisdiction
`pursuant to 28 U.S.C. §§ 1651 and 1295(a)(1).
`Applying the law of the regional circuit, In re TS Tech
`USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008), here, the
`United States Court of Appeals for the Fifth Circuit, our
`task on mandamus is limited to determining whether the
`denial of transfer was such a “‘clear’ abuse of discretion”
`that refusing transfer would produce a “patently erroneous
`result,” id. (citation omitted); see also In re Apple Inc., 979
`F.3d 1332, 1336 (Fed. Cir. 2020); In re Nitro Fluids L.L.C.,
`978 F.3d 1308, 1310–11 (Fed. Cir. 2020). Under Fifth Cir-
`cuit law, we must deny mandamus unless it is clear “that
`the facts and circumstances are without any basis for a
`judgment of discretion.” In re Volkswagen of Am, Inc., 545
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`Case: 22-158 Document: 12 Page: 3 Filed: 09/23/2022
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`IN RE: WENGER S.A.
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`F.3d 304, 312 n.7 (5th Cir. 2008) (en banc) (citation omit-
`ted). Wenger has not met that standard.
` Wenger has not made a compelling case for transfer to
`the Southern District of Florida here, particularly in light
`of the fact that no party is located there and the finding of
`delay. Wenger did not challenge the finding of delay before
`the district court. And we cannot say that the district court
`was plainly incorrect under the circumstances in rejecting
`Wenger’s argument that the transferee venue would be
`more convenient for prospective witnesses and evi-
`dence. Swissdigital has represented that it will rely only
`on sources of proof in Wenger’s possession, Appx005, and
`has said it will rely only on expert testimony regarding “the
`characteristics and features relevant to [the accused prod-
`ucts’] infringement,” Appx059, while Wenger’s motion to
`transfer failed to identify specific potential witnesses or ev-
`idence in the transferee venue on which it would rely. See
`Defense Distributed v. Bruck, 30 F.4th 414, 434 (5th Cir.
`2022) (noting that conclusory assertions that sources of
`proof or non-party witnesses exist in a transferee venue
`lacks the “necessary proof” required to show “the existence
`of relevant sources of proof”). Under these specific circum-
`stances, we cannot say that the district court’s denial of
`transfer produced a patently erroneous result.
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`Accordingly,
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`IT IS ORDERED THAT:
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`The petition is denied.
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`September 23, 2022
` Date
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` FOR THE COURT
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`/s/ Peter R. Marksteiner
` Peter R. Marksteiner
` Clerk of Court
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