By Tiffany Hu

Law360 (January 21, 2021, 10:18 PM EST ) The Federal Circuit refused Thursday to take up Intel's challenge of Western District of Texas Judge Albright's order to move a patent trial set for next month out of a courthouse that is closed due to the pandemic, saying it would not "second guess" the judge's decision.

In a nonprecedential order, a three-judge panel denied Intel's mandamus petition seeking review of Judge Albright's decision to transfer a Feb. 16 patent trial in VLSI Technology LLC's case against Intel from a courthouse in Austin, which is closed due to the COVID-19 pandemic, to one in Waco, which remains open.

Noting that mandamus is a "drastic" remedy, the panel said it would not "second guess" a judge's decision to transfer the case back to Waco as long as it has plausible support in the record, and held that "Intel has not satisfied that exacting standard here."

In this case, Judge Albright considered whether "unanticipated post-transfer events frustrated the original purpose for transfer" of the lawsuit from Waco to Austin, and concluded that transferring the case back to Waco was warranted, the panel said.

"While we may have evaluated these factors and the parties' arguments differently, we are unable to say that the district court's conclusion amounts to a clear abuse of discretion," the panel wrote.

VLSI, which is owned by investment funds with assets managed by Fortress Investment Group LLC, sued Intel in April 2019 over allegations that Intel's Ivy Bridge and Skylake processors infringe its computer chip patents. The suit was originally filed in Waco, but was shipped to Austin at Intel's request that October after Judge Albright found the venue more convenient. Intel has said in court filings that VLSI is seeking billions of dollars in damages.

After the pandemic hit, Judge Albright last year moved only the trial — not the whole case — from Austin to Waco, but the Federal Circuit granted a mandamus petition filed by Intel in December and ruled that he did not have the authority to do that.

However, the appeals court said he could move the entire case to Waco, but he had to show how Waco would be more convenient. VLSI then asked Judge Albright to do that, which he did on New Year's Eve, noting among other things that the Austin courthouse is closed and that he is "extremely busy," so rescheduling the Intel trial would require rescheduling others.

That led Intel to file a second mandamus petition, arguing that none of the factors that made Austin more convenient, like the location of witnesses and evidence, have changed because of the pandemic.

Last week, VLSI urged the appeals court to reject Intel's challenge, saying that since the original transfer to Austin, it has "become clear that for the indefinite future, trial proceedings cannot be conducted in the Austin courthouse."

"Judge Albright therefore took the eminently sensible step of reconsidering his earlier ruling in view of intervening facts that were not only unforeseen, but were unforeseeable, and which frustrated the purpose of his original order transferring the case to Austin," VLSI said.

Counsel for the parties did not immediately respond to requests for comment late Thursday.

U.S. Circuit Judges Sharon Prost, Alan D. Lourie and Raymond T. Chen sat on the panel for the Federal Circuit.

VLSI is represented by Morgan Chu, Benjamin Hattenbach, Iian D. Jablon, Alan J. Heinrich, Ian Washburn, Amy Proctor, Dominik Slusarczyk, Elizabeth Tuan, Charlotte Wen, Brian Weissenberg, Benjamin Manzin-Monnin, Jordan Nafekh, Michael Strub Jr. and Babak Redjaian of Irell & Manella LLP, J. Mark Mann, G. Blake Thompson and Andy Tindel of Mann Tindel Thompson, and Craig Cherry of Haley & Olson PC.

Intel is represented by William Lee, Louis Tompros, Kate Saxton, Gregory Lantier, Amanda Major, Gregory Lantier, Richard Crudo, Steven Horn, Joseph Mueller and Lauren Fletcher of WilmerHale, J. Stephen Ravel of Kelly Hart & Hallman LLP, and James Wren of Baylor Law School.

The district court case is VLSI Technology LLC v. Intel Corp., case number 1:19-cv-00977, in the U.S. District Court for the Western District of Texas. The appellate case is In re: Intel Corp., case number 21-111, in the U.S. Court of Appeals for the Federal Circuit.

--Additional reporting by Ryan Davis. Editing by Breda Lund.

Correction: An earlier version of this story incorrectly described the relationship between VLSI and Fortress. The error has been fixed.

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