Federal Circuit disposition — 22-158

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: WENGER S.A.,
Petitioner
______________________
2022-158
______________________
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.
______________________
ON PETITION
______________________
Before D YK, REYNA, and T ARANTO, Circuit Judges.
REYNA, Circuit Judge.
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.
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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IN RE: WENGER S. A. 2
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.
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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IN RE: WENGER S. A. 3
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.
Accordingly,
I T I S O RDERED T HAT :
The petition is denied.
September 23, 2022
Date
F OR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
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