throbber
Case: 22-162 Document: 13 Page: 1 Filed: 09/12/2022
`
`Miscellaneous Docket No. 22-162
`
`
`
`IN THE
`United States Court of Appeals for the Federal Circuit
`
`
`
`
`IN RE APPLE INC.,
`
`Petitioner.
`
`
`
`
`On Petition for Writ of Mandamus to the
`United States District Court for the
`Western District of Texas
`No. 6:21-cv-01101-ADA, Hon. Alan D Albright
`
`
`
`APPLE INC.’S REPLY IN SUPPORT OF
`PETITION FOR WRIT OF MANDAMUS
`
`
`
`Andrew N. Thomases
`Andrew T. Radsch
`ROPES & GRAY LLP
`1900 University Avenue,
`6th Floor
`East Palo Alto, CA 94303
`(650) 617-4763
`
`Melanie L. Bostwick
`Lauren A. Weber
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`1152 15th Street NW
`Washington, DC 20005
`(202) 339-8400
`
`Melanie R. Hallums
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`2121 Main Street
`Wheeling, WV 26003
`Counsel for Petitioner
`
`
`
`
`
`

`

`Case: 22-162 Document: 13 Page: 2 Filed: 09/12/2022
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES ...................................................................... ii
`INTRODUCTION ...................................................................................... 1
`ARGUMENT ............................................................................................. 2
`I.
`The District Court’s Clear Abuse Of Discretion
`Warrants Mandamus Relief. ................................................... 2
`A.
`The district court clearly abused its discretion by
`violating binding precedent. .......................................... 2
`B. Aire’s criticisms of Apple’s conduct are unfounded. ...... 5
`II. Apple Has No Other Adequate Means To Obtain Relief. ..... 11
`III. Mandamus Is Appropriate Under The Circumstances. ....... 14
`CONCLUSION ........................................................................................ 16
`CERTIFICATE OF COMPLIANCE
`
`
`i
`
`

`

`Case: 22-162 Document: 13 Page: 3 Filed: 09/12/2022
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`In re Apple Inc.,
`979 F.3d 1332 (Fed. Cir. 2020) ............................................................. 3
`In re Apple Inc.,
`No. 2022-128, 2022 WL 1196768 (Fed. Cir. Apr. 22, 2022) ................. 7
`Cheney v. U.S. Dist. Ct.,
`542 U.S. 367 (2004) ....................................................................... 12, 14
`In re Google Inc.,
`No. 2015-138, 2015 WL 5294800 (Fed. Cir. July 16, 2015) ..... 3, 12, 16
`GUI Glob. Prods., Ltd. v. Samsung Elecs. Co.,
`No. 4:20-cv-2624, 2021 WL 3705005 (S.D. Tex. May 28, 2021) ........... 7
`In re Hewlett Packard Enter. Co.,
`No. 2022-154, 2022 WL 3209326 (Fed. Cir. Aug. 9, 2022) ................... 6
`In re Horseshoe Ent.,
`337 F.3d 429 (5th Cir. 2003) ................................................................. 4
`Koss Corp. v. Apple Inc.,
`No. 6-20-CV-00665-ADA, 2021 WL 5316453 (W.D. Tex.
`Apr. 22, 2021) ........................................................................................ 8
`LoganTree LP v. Apple Inc.,
`No. 6:21-CV-00397-ADA, 2022 WL 1491097 (W.D. Tex.
`May 11, 2022) ........................................................................................ 8
`In re Netflix, Inc.,
`No. 2021-190, 2021 WL 4944826 (Fed. Cir. Oct. 25, 2021) .................. 3
`In re Nintendo Co.,
`544 F. App’x 934 (Fed. Cir. 2013) ......................................................... 4
`
`ii
`
`

`

`Case: 22-162 Document: 13 Page: 4 Filed: 09/12/2022
`
`In re Pruett,
`133 F.3d 275 (4th Cir. 1997) ............................................................... 13
`In re SK hynix Inc.,
`835 F. App’x 600 (Fed. Cir. 2021) ................................................... 3, 15
`In re TracFone Wireless, Inc.,
`848 F. App’x 899 (Fed. Cir. 2021) ................................................. 12, 15
`In re TS Tech USA Corp.,
`551 F.3d 1315 (Fed. Cir. 2008) ........................................................... 13
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) ............................................................... 12
`Statutes
`28 U.S.C. § 1404(a) .......................................................................... 4, 7, 15
`Other Authorities
`Discovery and Scheduling Order, XR Commc’ns v. Apple Inc.,
`No. 6:21-cv-00620-ADA, Dkt. 72 (W.D. Tex. Sept. 9, 2022) ........... 6, 13
`Order Denying Motion to Transfer, CPC Patent Techs. Pty
`Ltd. v. Apple Inc., No. 6:21-cv-00165-ADA, Dkt. 82 (W.D.
`Tex. Feb. 8, 2022) .................................................................................. 7
`Order Granting Motion to Transfer, Cub Club Inv., LLC v.
`Apple Inc., No. 6:20-cv-00856-ADA, Dkt. 28 (W.D. Tex.
`Sept. 7, 2021) ........................................................................................ 8
`Order Granting Motion to Transfer, Identity Sec. LLC v.
`Apple Inc., No. 6:21-cv-00460-ADA, Dkt. 55 (W.D. Tex.
`Jan. 20, 2022) ........................................................................................ 8
`Petition for Writ of Mandamus, In re Apple, No. 22-164, Dkt. 2
`(Fed. Cir. Sept. 8, 2022) ...................................................................... 13
`
`
`
`iii
`
`

`

`Case: 22-162 Document: 13 Page: 5 Filed: 09/12/2022
`
`INTRODUCTION
`Apple’s petition demonstrated that the district court here
`
`committed the same clear abuse of discretion that this Court has
`
`previously cured through the exercise of its mandamus authority.
`
`Indeed, the district court here did not merely let a fully briefed transfer
`
`motion linger on the docket. It affirmatively ordered the parties to
`
`spend another eight months completing fact discovery on the merits,
`
`taking numerous other substantive steps to prepare this case for trial,
`
`and then re-briefing the transfer issue, at which point—a full year after
`
`Apple’s transfer motion was filed—the district court will consider
`
`transfer.
`
`Aire’s opposition confirms that neither party asked for or wanted
`
`this result. And Aire offers no defense of the district court’s order, other
`
`than to blame Apple. Aire first blames Apple for the court-ordered
`
`delay, because Apple sought to supplement the venue record. Aire
`
`concedes, however, that Apple’s supplement contained no new evidence;
`
`it merely confirmed the information already provided by Apple’s
`
`corporate venue declarant. And, contrary to Aire’s assertion, Apple told
`
`the district court that it did not believe this supplement required any
`
`1
`
`

`

`Case: 22-162 Document: 13 Page: 6 Filed: 09/12/2022
`
`delay in the existing schedule. Apple merely offered to consent to a
`
`short continuance if Aire wanted one—which Aire did not. Aire also
`
`blames Apple for not asking Aire to fix the problem before seeking this
`
`Court’s mandamus intervention. But Aire does not have the authority
`
`to change the district court’s order, which the district court issued on its
`
`own initiative and despite both parties objecting to any delay.
`
`Nothing in Aire’s opposition undermines Apple’s showing that the
`
`district court committed a clear abuse of discretion that is remediable
`
`solely, and properly, through a writ of mandamus. The Court should
`
`grant Apple’s petition.
`
`ARGUMENT
`
`I.
`
`The District Court’s Clear Abuse Of Discretion Warrants
`Mandamus Relief.
`A. The district court clearly abused its discretion by
`violating binding precedent.
`Apple’s petition demonstrated that the district court clearly
`
`abused its discretion—giving Apple a clear and indisputable right to
`
`mandamus relief. Pet. 16-28. The district court’s scheduling order
`
`ensures that fact discovery will be complete, many other substantive
`
`steps will be taken in the litigation, and a full year will have passed
`
`since the filing of Apple’s transfer motion before that motion will be
`
`2
`
`

`

`Case: 22-162 Document: 13 Page: 7 Filed: 09/12/2022
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`fully re-briefed and the district court will resolve it. Pet. 19-22. Aire
`
`does not dispute Apple’s showing.
`
`Aire insists that the district court’s order “follows all applicable
`
`precedent from this Court and the Fifth Circuit.” Opp. 1. But Aire fails
`
`to explain how that could possibly be so, when—as Apple
`
`demonstrated—precedent requires a district court to resolve a transfer
`
`motion without lengthy delays and before proceeding with precisely the
`
`kind of substantive tasks that the district court’s order here
`
`contemplates. See Pet. 16-18.
`
`Aire suggests that the scheduling order is permissible because it
`
`ensures that the Markman hearing will not take place, and a claim-
`
`construction order will not issue, until transfer is resolved. See Opp. 4-
`
`5. But here too, Apple already explained that this is incorrect. This
`
`Court has repeatedly identified the completion of fact discovery and
`
`supervision of discovery disputes, for example, as tasks that should take
`
`place after transfer is resolved. See Pet. 17-20; In re Netflix, Inc., No.
`
`2021-190, 2021 WL 4944826, at *1 (Fed. Cir. Oct. 25, 2021); In re SK
`
`hynix Inc., 835 F. App’x 600, 600-01 (Fed. Cir. 2021); In re Apple Inc.,
`
`979 F.3d 1332, 1338 (Fed. Cir. 2020); In re Google Inc., No. 2015-138,
`
`3
`
`

`

`Case: 22-162 Document: 13 Page: 8 Filed: 09/12/2022
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`2015 WL 5294800, at *1 (Fed. Cir. July 16, 2015); In re Nintendo Co.,
`
`544 F. App’x 934, 941 (Fed. Cir. 2013).
`
`Aire does not acknowledge these statements or attempt to
`
`reconcile them with the scheduling order here. And Aire’s apparent
`
`defense of the district court’s order would lead to absurd results. If
`
`Markman were the only substantive step that mattered, a district court
`
`could simply delay the Markman hearing (and the resolution of
`
`transfer) as long as it wished, saving it for the literal eve of trial. This
`
`would obviously defeat the purpose of § 1404(a), which is to prevent
`
`parties from having to litigate in inconvenient forums. Deferring
`
`transfer decisions until the final stages of litigation, as the district court
`
`did here, all but guarantees the inconvenience that § 1404(a) aims to
`
`avoid. That is why the Fifth Circuit requires district courts to give “top
`
`priority” to transfer motions and avoid lengthy delays in resolving
`
`them. In re Horseshoe Ent., 337 F.3d 429, 433 (5th Cir. 2003). Aire
`
`does not even cite Horseshoe. It certainly does not explain how waiting
`
`twelve months to decide a transfer motion is affording the issue “top
`
`priority.” See Pet. 21-22.
`
`4
`
`

`

`Case: 22-162 Document: 13 Page: 9 Filed: 09/12/2022
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`B. Aire’s criticisms of Apple’s conduct are unfounded.
`Instead of addressing the clear legal defect in the scheduling
`
`order, Aire focuses its efforts on blaming Apple for the district court’s
`
`decision. Like the district court, Aire attributes the change in schedule
`
`to Apple’s motion to supplement venue discovery. Opp. 4-5. But as
`
`Apple explained, the supplemental declarations it presented contained
`
`“no new information” and came from individuals “Aire had already
`
`chosen not to depose.” Pet. 23. Aire doesn’t claim otherwise. On the
`
`contrary, it admits that the supplemental declarations were intended to
`
`“back up the statements” provided in Apple’s original declaration in
`
`support of transfer, which was signed by Mark Rollins on behalf of the
`
`corporation. Opp. 5. Aire fails to identify anything about this
`
`confirmation that constituted “untimely transfer evidence,” Opp. 4, or
`
`otherwise justified the extreme delay imposed by the district court.
`
`Aire instead faults Apple for a supposed “strategic blunder,” Opp.
`
`2—namely, relying on a corporate designee to provide venue-related
`
`information. See also Opp. 7 (“Requiring that evidentiary assertions in
`
`transfer motions be supported by declarants with personal knowledge is
`
`a common requirement that should not have caught Apple by
`
`5
`
`

`

`Case: 22-162 Document: 13 Page: 10 Filed: 09/12/2022
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`surprise.”).1 As Apple already explained, this is perfectly ordinary
`
`litigation behavior. Pet. 6-9. Aire does not provide any reason why it
`
`would be improper. And indeed, the district court has recently made
`
`clear that it has no objection to this practice in general; it objects only to
`
`Apple’s specific declarations. See XR Commc’ns v. Apple Inc., No. 6:21-
`
`cv-00620-ADA, Dkt. 72 at 7-10 (W.D. Tex. Sept. 9, 2022).
`
`Aire contends that Apple should have been aware of the district
`
`court’s criticisms of its corporate declarant before filing its transfer
`
`motion in this case. Opp. 5-6. It asserts that “[s]everal court opinions
`
`had already criticized Mr. Rollins for his vague, unsupported
`
`declarations” before the Scramoge order issued. Opp. 5-6.
`
`The two examples Aire offers show nothing of the sort. In each
`
`case, the district court took issue with the wording of certain
`
`statements in Mr. Rollins’s declarations but generally credited his
`
`testimony. Indeed, in each case, the statements the district courts
`
`
`1 The lone authority Aire cites for this supposedly common requirement
`has nothing to do with whether declarations are based on individual,
`personal knowledge or offered on behalf of a corporation as a whole.
`Indeed, the declaration this Court questioned was offered based on an
`employee’s “personal knowledge.” In re Hewlett Packard Enter. Co., No.
`2022-154, 2022 WL 3209326, at *2 (Fed. Cir. Aug. 9, 2022).
`
`6
`
`

`

`Case: 22-162 Document: 13 Page: 11 Filed: 09/12/2022
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`found problematic were strikingly similar: both indicated that Apple’s
`
`hard-copy files and electronic documents “reside on local computers
`
`and/or servers” located in specific places or were “accessible in [or from]”
`
`those places. GUI Glob. Prods., Ltd. v. Samsung Elecs. Co., No. 4:20-cv-
`
`2624, 2021 WL 3705005, at *2 (S.D. Tex. May 28, 2021); CPC Patent
`
`Techs. Pty Ltd. v. Apple Inc., No. 6:21-cv-00165-ADA, Dkt. 82 at 6-7
`
`(W.D. Tex. Feb. 8, 2022). Each district court took issue with a lack of
`
`specificity regarding the location of physical documents, because each
`
`believed that access to electronic documents was “not meaningful” in
`
`the § 1404(a) analysis.” CPC, Dkt. 82 at 7; see GUI, 2021 WL 3705005,
`
`at *2 (for forum to be more convenient, “it must contain Defendant’s
`
`physical sources of proof”).
`
`Notably, in issuing a writ of mandamus in the CPC case, this
`
`Court explained why the district courts’ rationale for complaining about
`
`those specific statements by Mr. Rollins was flawed. See In re Apple
`
`Inc., No. 2022-128, 2022 WL 1196768, at *4 (Fed. Cir. Apr. 22, 2022)
`
`(noting that district court “failed to ask the correct question” as to this
`
`factor). The Court also specifically relied on the very statement in
`
`Apple’s “sworn declaration” that the district court critiqued. Id. But
`
`7
`
`

`

`Case: 22-162 Document: 13 Page: 12 Filed: 09/12/2022
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`even without this Court’s ruling, it is implausible to suggest that, from
`
`two district courts’ limited criticisms, Apple should have drawn the
`
`conclusion that the entire process of using and educating a corporate
`
`declarant for venue purposes was problematic.
`
`Furthermore, despite the district court’s statement in Scramoge
`
`that it had “long treated Mr. Rollins with skepticism,” Appx344 n.3, the
`
`district court in fact had routinely credited Mr. Rollins’s testimony in
`
`prior cases. See, e.g., Koss Corp. v. Apple Inc., No. 6-20-CV-00665-ADA,
`
`2021 WL 5316453, at *3-4 (W.D. Tex. Apr. 22, 2021); LoganTree LP v.
`
`Apple Inc., No. 6:21-CV-00397-ADA, 2022 WL 1491097, at *3, *6-7
`
`(W.D. Tex. May 11, 2022); Identity Sec. LLC v. Apple Inc., No. 6:21-cv-
`
`00460-ADA, Dkt. 55 at 8 (W.D. Tex. Jan. 20, 2022); Cub Club Inv., LLC
`
`v. Apple Inc., No. 6:20-cv-00856-ADA, Dkt. 28 at 5-9 (W.D. Tex. Sept. 7,
`
`2021).
`
`In all events, as Apple has demonstrated, the district court’s
`
`newfound criticism of Mr. Rollins in Scramoge was unfounded. See Pet.
`
`8; Appx336-360. Aire’s attempts to show otherwise are meritless. Aire
`
`argues that “Mr. Rollins routinely offers information about topics a
`
`financial manager would typically not know.” Opp. 7 (quoting
`
`8
`
`

`

`Case: 22-162 Document: 13 Page: 13 Filed: 09/12/2022
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`Appx342). Again, the information Mr. Rollins offered was on behalf of
`
`Apple as a corporation and was based on his conversations with the
`
`people within Apple who do know about the relevant topics. See Pet. 7.
`
`In this case, for example, Aire accuses Apple Pay contactless
`
`payment features of infringing its patents. Opp. 2 n.1 (confirming this
`
`assertion). Mr. Rollins provided information gleaned from his
`
`discussions with (1) an engineering manager responsible for the device-
`
`side source code for Apple Wallet; (2) a software development
`
`engineering manager responsible for the technology allowing for near-
`
`field communications; (3) an engineering manager responsible for
`
`Wireless Architecture who works with the third-party supplier whose
`
`chip provides the near-field communication capability in Apple devices;
`
`(4) an engineering manager responsible for the device-side code that
`
`facilitates communications between the third-party chip and another
`
`component; (5) a marketing director from Apple’s Wallet, Payments and
`
`Commerce Marketing group; and (6) an Apple attorney who works on
`
`patent licensing. Appx107-109. Aire offers no reason why Mr. Rollins
`
`could not faithfully relay the information from these subject-matter
`
`9
`
`

`

`Case: 22-162 Document: 13 Page: 14 Filed: 09/12/2022
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`experts. And indeed, the supplemental declarations at issue in this case
`
`confirm that he did so. See Pet. 10.
`
`The fact that another district court denied Apple’s request to
`
`vacate the credibility ruling in Scramoge likewise does not show any
`
`reason to doubt Mr. Rollins’s reliability. See Opp. 7 (citing this ruling
`
`as a basis to support the district court’s credibility assessment). The
`
`Northern District of California judge did not address the merits of the
`
`credibility ruling and instead explained that it would be “err[or]” for her
`
`or any other judge to rely on it. Appx402. The Northern District of
`
`California judge therefore made clear that the credibility ruling was not
`
`“ever going to come up in this case” “again.” Appx407. And the judge
`
`asked Scramoge’s lawyers—the same lawyers who represent Aire
`
`here—to confirm that they would not bring up the credibility ruling
`
`again. Appx408. They agreed. Appx408. (“[O]f course we would never
`
`bring that up.”).
`
`Aire’s remaining arguments are equally meritless. Aire argues
`
`that Apple cannot rely on this Court’s Google decision because “Google
`
`did not want any further delay as a result of its supplementation
`
`request.” Opp. 8. Neither did Apple. Apple told the district court that
`
`10
`
`

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`Case: 22-162 Document: 13 Page: 15 Filed: 09/12/2022
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`“a continuance [wa]s not necessary” because its supplement provided no
`
`new information, Appx177—a fact that Aire does not contest. In the
`
`interest of comity, Apple stated that it “would not oppose” a “reasonable
`
`continuance” if Aire requested one. Appx181. Aire, notably, did not
`
`make such a request.
`
`Aire also relies on the fact that the district court granted Apple
`
`the relief it asked for by allowing the supplemental declarations into
`
`evidence. According to Aire, Apple cannot ask this Court to “undo what
`
`it has won.” Opp. 4. Apple is asking no such thing. The clear abuse of
`
`discretion that Apple’s petition seeks to remedy is not the acceptance of
`
`Apple’s uncontroversial supplemental declarations. It is the district
`
`court’s sua sponte decision to order the parties to spend eight more
`
`months litigating this case on the merits before the court will consider
`
`Apple’s fully briefed transfer motion. Aire offers no reason to withhold
`
`mandamus relief for that error.
`
`II. Apple Has No Other Adequate Means To Obtain Relief.
`Apple demonstrated that it has no adequate alternative to
`
`mandamus. Without this Court’s intervention, Apple will suffer the
`
`“unnecessary inconvenience and expense” of litigating in an
`
`11
`
`

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`Case: 22-162 Document: 13 Page: 16 Filed: 09/12/2022
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`inconvenient forum for another eight months. Pet. 28-30 (quoting
`
`Google, 2015 WL 5294800, at *1). A direct appeal after final judgment
`
`cannot remedy that harm, and an interlocutory appeal is not available
`
`for transfer matters. See Pet. 29-30; In re Volkswagen of Am., Inc., 545
`
`F.3d 304, 318-19 (5th Cir. 2008) (en banc). And this Court has granted
`
`mandamus relief to address similar delays in resolving transfer
`
`motions. E.g., In re TracFone Wireless, Inc., 848 F. App’x 899, 900-01
`
`(Fed. Cir. 2021).
`
`Aire does not contest any of that precedent. Instead, it argues
`
`that Apple has “an alternate path for relief”: asking Aire to agree that
`
`the district court should “promptly decide[]” the transfer motion. Opp.
`
`8-9. This novel theory has two fatal flaws.
`
`First, a writ of mandamus is directed to a district court, not the
`
`opposing party. See Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380 (2004).
`
`And the district court chose this schedule despite the fact that no party
`
`had asked for it. Pet. 13. Aire cites no authority for the proposition
`
`that the opposing party’s agreement to a result over which it has no
`
`control provides an “adequate” alternative to mandamus. Moreover, in
`
`a co-pending case where the district court previously entered the same
`
`12
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`

`

`Case: 22-162 Document: 13 Page: 17 Filed: 09/12/2022
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`scheduling order (and where Apple has also sought mandamus), the
`
`district court just issued another order recommitting to its position that
`
`the parties must complete “[f]ull fact discovery … to provide the Court
`
`with the best evidence for ruling on a motion to transfer.” XR
`
`Commc’ns, Dkt. 72 at 4. There is no reason to believe that Aire’s non-
`
`opposition to a prompt transfer ruling would change the district court’s
`
`mind.2
`
`Second, Aire misunderstands the “no other adequate means”
`
`prong as requiring that the mandamus petitioner lacks even the
`
`theoretical “possibility of relief” through any other channel. Opp. 9.
`
`But that is not the law. A party need not “exhaust every possible
`
`avenue of relief at the district court before seeking mandamus relief.”
`
`In re TS Tech USA Corp., 551 F.3d 1315, 1322 (Fed. Cir. 2008)
`
`(collecting cases). Thus, for example, a party can obtain mandamus
`
`relief without first seeking reconsideration. See id.; see also In re
`
`Pruett, 133 F.3d 275, 280 (4th Cir. 1997) (granting mandamus where
`
`
`2 Nor is there reason to believe that Apple could change the district
`court’s mind by withdrawing its supplement, as Aire suggests (at 9).
`Indeed, the district court has entered the same scheduling order in a
`case where Apple did not seek to supplement the venue record. See In
`re Apple, No. 22-164, Dkt. 2, at 2-4 (Fed. Cir. Sept. 8, 2022).
`
`13
`
`

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`Case: 22-162 Document: 13 Page: 18 Filed: 09/12/2022
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`the party “contest[ing] the ex parte discovery orders” could have, among
`
`other things, sought reconsideration or refused to comply with the
`
`orders and then appealed any resulting contempt order).
`
`In short, this second prong of the mandamus standard is satisfied
`
`as long as “the writ will not be used as a substitute for the regular
`
`appeals process.” Cheney, 542 U.S. at 380-81. Here, Aire does not even
`
`attempt to show that Apple’s petition substitutes for a regular appeal.
`
`And Aire’s suggestions of futile efforts that Apple might pursue cannot
`
`overcome Apple’s showing that mandamus provides the only adequate
`
`way for Apple to avoid eight more months of litigating the merits of this
`
`case in an inconvenient venue. Pet. 28-37.
`
`III. Mandamus Is Appropriate Under The Circumstances.
`Aire largely does not respond to Apple’s showing that mandamus
`
`is particularly appropriate in the circumstances of this case. Indeed,
`
`Aire agrees with Apple that transfer should be resolved promptly, and
`
`not under the extended scheduling order that the district court issued
`
`sua sponte. Opp. 9. As Apple explained, there is “particularly no
`
`reason” to enforce that schedule “when no party has asked for that
`
`result.” Pet. 39.
`
`14
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`

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`Case: 22-162 Document: 13 Page: 19 Filed: 09/12/2022
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`It is also particularly unwarranted to delay transfer and force the
`
`parties to continue litigating in a forum that Apple has shown to be
`
`clearly inconvenient. Apple’s petition demonstrated that the § 1404(a)
`
`factors overwhelmingly favor transfer. Pet. 32-37. Aire responds in a
`
`footnote, suggesting that this analysis “ignores Aire’s showing of
`
`relevant witnesses and evidence” in the Western District of Texas. Opp.
`
`2 n.1. Apple did not ignore Aire’s arguments; it explained why they are
`
`plainly meritless. See Pet. 33, 35-36.
`
`Regardless, the district court should resolve the merits of transfer
`
`promptly, as precedent requires and as both parties prefer. And it
`
`should do so while staying further progress on the substantive merits of
`
`the litigation, as Apple requested. Aire complains that Apple’s petition
`
`“fails to explain why a stay would be warranted.” Opp. 4. But that is
`
`the relief this Court has routinely ordered in similar circumstances, to
`
`prevent a district court from continuing to proceed on the merits of a
`
`case before resolving a fully briefed transfer motion. See TracFone, 848
`
`F. App’x at 901 (ordering the district court “to issue its ruling on the
`
`motion to transfer within 30 days” and further ordering that “all
`
`proceedings in the case are stayed until further notice”); SK hynix, 835
`
`15
`
`

`

`Case: 22-162 Document: 13 Page: 20 Filed: 09/12/2022
`
`F. App’x at 601 (“the district court must stay all proceedings concerning
`
`the substantive issues in the case until such time that it has issued a
`
`ruling on the transfer motion capable of providing meaningful appellate
`
`review”); Google, 2015 WL 5294800, at *2 (ordering district court to
`
`issue a transfer ruling within 30 days “and stay all other proceedings
`
`pending final resolution of the transfer motion”). Aire offers no reason
`
`why a similar order would be inappropriate here.
`
`CONCLUSION
`The Court should grant Apple’s petition.
`
`
`
`Respectfully submitted,
`
`/s/ Melanie L. Bostwick
`Melanie L. Bostwick
`Lauren A. Weber
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`1152 15th Street NW
`Washington, DC 20005
`(202) 339-8400
`
`Melanie R. Hallums
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`2121 Main Street
`Wheeling, WV 26003
`
`
`
`Andrew N. Thomases
`Andrew T. Radsch
`ROPES & GRAY LLP
`1900 University Avenue,
`6th Floor
`East Palo Alto, CA 94303
`
`
`Counsel for Petitioner
`
`
`16
`
`

`

`Case: 22-162 Document: 13 Page: 21 Filed: 09/12/2022
`
`CERTIFICATE OF COMPLIANCE
`
`The reply complies with the type-volume limitation of Fed. Cir. R.
`
`21(b) because this reply contains 3096 words.
`
`This reply complies with the typeface requirements of Fed. R. App.
`
`P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
`
`because this reply has been prepared in a proportionally spaced
`
`typeface using Microsoft Word for Microsoft 365 in Century Schoolbook
`
`14-point font.
`
`
`
`
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`
`/s/ Melanie L. Bostwick
`Melanie L. Bostwick
`Counsel for Petitioner
`
`
`
`
`
`

`

`Case: 22-162 Document: 13 Page: 22 Filed: 09/12/2022
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that I electronically filed the foregoing with the
`
`Clerk of the Court for the United States Court of Appeals for the
`
`Federal Circuit by using the appellate CM/ECF system on September
`
`12, 2022.
`
`A copy of the foregoing was served upon the following counsel of
`
`record via FedEx:
`
`Brett E. Cooper
`Jonathan Yim
`BC Law Group, P.C.
`200 Madison Avenue, 24th Floor
`New York, NY 10016
`Telephone: (516) 359-9668
`bcooper@b-clg.com
`jyim@b-clg.com
`
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`
`/s/ Melanie L. Bostwick
`Melanie L. Bostwick
`Counsel for Petitioner
`
`
`
`
`
`
`
`

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