Federal Circuit disposition — 25-130

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In Re VIRTAMOVE, CORP.,
Petitioner
______________________
2025-130
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Western District of Texas in No. 7:24-
cv-00033-DC-DTG, Judge David Counts.
______________________
ON PETITION
______________________
Before REYNA, HUGHES, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
O R D E R
VirtaMove, Corp. brought this patent infringement
suit against Google LLC in the Midland/Odessa Division of
the United States District Court for the Western District of
Texas (WDTX), but the court transferred it to the United
States District Court for the Northern District of California
(NDCA) under 28 U.S.C. § 1404(a), emphasizing NDCA’s
local interest in resolving the dispute and comparative con-
venience for potential witnesses. VirtaMove now seeks a
writ of mandamus to vacate that transfer order.
Case: 25-130 Document: 17 Page: 1 Filed: 09/11/2025

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IN RE VIRTAMOVE, CORP. 2
We have authority to grant a writ of mandamus as
“necessary or appropriate in aid of” our jurisdiction,
28 U.S.C. § 1651(a), but the petitioner bears a heavy bur-
den. It must show: (1) “no other adequate means to attain
the relief [it] desires,” (2) a “clear and indisputable” right
to relief, and (3) that the writ is “appropriate under the cir-
cumstances.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S.
367, 380–81 (2004). In reviewing § 1404(a) transfer deci-
sions, we apply regional circuit law and grant relief only
where there is a “clear” abuse of discretion that produced a
“patently erroneous result.” In re TS Tech USA Corp., 551
F.3d 1315, 1319 (Fed. Cir. 2008) (quoting In re Volkswagen
of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en banc)).
We conclude this standard is not met.
The district court concluded that the willing witnesses
factor here weighed in favor of NDCA based on Google hav-
ing “clearly demonstrated that [several of] its relevant em-
ployees are concentrated in NDCA and Seattle, with most
working in or near San Francisco,” Appx3, compared to one
potential witness in WDTX located more than 300 miles
from the relevant courthouse. Appx1140, Appx1358. Vir-
taMove challenges that determination based on potential
witnesses VirtaMove identified in the eastern United
States and eastern Canada that the court noted are “geo-
graphically closer to WDTX than NDCA” but would still
“have to travel well over 100 miles to either district.”
Appx3. VirtaMove contends the district court misapplied
the 100-mile rule by finding this factor weighed in favor of
transfer despite those potential witnesses. We disagree.
The Fifth Circuit has recognized that “[w]hen the dis-
tance between an existing venue for trial of a matter and a
proposed venue . . . is more than 100 miles, the factor of
inconvenience to witnesses increases in direct relationship
to the additional distance to be traveled.” Volkswagen, 545
F.3d at 317 (citation omitted). And it has relied on that
“rule” to assess convenience for potential witnesses, even if
they reside a significant distance away from both forums.
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IN RE VIRTAMOVE, CORP. 3
See In re TikTok, Inc., 85 F.4th 352, 361 (5th Cir. 2023)
(faulting the district court for not considering the 100-mile
rule for potential witnesses located in China). But it has
never suggested, let alone held, that a district court must
ignore common-sense and require all witnesses travel a sig-
nificant distance when transfer would allow a significant
number of witnesses to testify near home.
VirtaMove has not shown a clear and indisputable
right to use the 100-mile rule in a way that would force
such an inconvenient result. In fact, this court has repeat-
edly rejected such an approach. See In re Apple Inc., 979
F.3d 1332, 1341 (Fed. Cir. 2020) (rejecting the district court
giving more weight to two potential witnesses who would
need to travel a significant distance to either forum at the
expense of several witnesses in transferee forum); In re
Genentech, Inc., 566 F.3d 1338, 1344 (Fed. Cir. 2009) (not-
ing that witnesses traveling from Europe, Iowa, and the
East Coast would be only “slightly more inconvenienced by
having to travel to California” than to Texas). VirtaMove
cites no Fifth Circuit case to the contrary.1
VirtaMove also contends that under In re Clarke, 94
F.4th 502 (5th Cir. 2024), Google had to show at the early
stages of litigation that it would “actually” call these indi-
viduals at trial, not just that these potential witnesses have
1 VirtaMove cites TikTok, but, if anything, that case
supports transfer here. In that case, the Fifth Circuit com-
pelled transfer from WDTX to NDCA where the bulk of wit-
nesses were in China, explaining that “[t]he presence of one
Texas witness cannot overcome the immense inconven-
ience that the majority of witnesses would face if this case
were to be tried in Texas.” 85 F.4th at 361–62. Given
Google here identified a significant number of potential
witnesses residing in the transferee forum, the case for
transfer is even stronger than it was in TikTok.
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IN RE VIRTAMOVE, CORP. 4
relevant and material information. But it misreads Clarke,
where the Fifth Circuit merely noted that, for purposes of
showing good cause for transfer, a movant must show the
overall marginal gains in convenience will be “significant”
and “clearly demonstrate[]” they will “actually materialize
in the transferee venue.” Id. at 508. VirtaMove’s take on
Clarke not only “confuses [the] burden of demonstrating
that the transferee venue is clearly more convenient with
the showing needed for a conclusion that a particular . . .
factor favors transfer,” Apple, 979 F.3d at 1340, but also
ignores that the Fifth Circuit, sitting en banc, rejected the
argument that a party must identify what witnesses they
would actually be calling at trial and the specific testimony
they would provide, Volkswagen, 545 F.3d at 317 n.12.
VirtaMove’s challenge to the district court’s assess-
ment of the local interest factor is similarly unconvincing.
VirtaMove does not dispute that, between the two forums,
only NDCA has any meaningful connection to the design,
development, and testing of the accused products. It, nev-
ertheless, contends the factor is neutral because Google of-
fers its accused products nationwide. But this argument
misses the point. Google’s design and development of the
accused products in NDCA specifically ties that venue to
“the events that gave rise to [the] suit,” see Def. Distrib. v.
Bruck, 30 F.4th 414, 435 (5th Cir. 2022) (citation omitted),
giving the citizens of NDCA “a greater stake in the litiga-
tion,” In re Planned Parenthood Fed’n of Am., Inc., 52 F.4th
625, 632 (5th Cir. 2022) (cleaned up). That Google offers
the accused products nationwide does not give WDTX any
comparable local interest. See Volkswagen, 545 F.3d at
318; see also In re Hoffmann-La Roche Inc., 587 F.3d 1333,
1338 (Fed. Cir. 2009) (“[T]he sale of an accused product of-
fered nationwide does not give rise to a substantial interest
in any single venue[.]”).
Finally, VirtaMove criticizes this court for allegedly de-
viating from how the Fifth Circuit has treated the court
congestion factor. In particular, VirtaMove notes that in
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IN RE VIRTAMOVE, CORP. 5
In re Google LLC, 58 F.4th 1379, 1383 (Fed. Cir. 2023), we
held that court congestion was not entitled to significant
weight there because the plaintiff was “not engaged in
product competition in the marketplace and [wa]s not
threatened in the market in a way that, in other patent
cases, might add urgency to case resolution and give some
significance to the time-to-trial difference.” VirtaMove ar-
gues that such differences “always matter[]” under Fifth
Circuit law. Pet. at 13; But it fails to cite any contrary
caselaw and, more importantly, fails to explain how a dif-
ferent approach would lead to a different result than the
one reached by the trial court on this factor. See In re
Chamber of Com. of the U.S., 105 F.4th 297, 310 (5th Cir.
2024) (“Parties’ assertions that their case needs to be de-
cided quickly should not affect the weight of this factor” ab-
sent “special circumstance[s.]”); cf. Clarke, 94 F.4th at 515
(declining to give dispositive weight to this factor).
Accordingly,
IT IS ORDERED THAT:
The petition is denied.
September 11, 2025
Date
FOR THE COURT
Case: 25-130 Document: 17 Page: 5 Filed: 09/11/2025

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