In Re: Asustek Computer Inc. , 705 F. App'x 956 ( 2017 )

Case: 17-131 Document: 34 Page: 1 Filed: 11/15/2017
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: ASUSTEK COMPUTER INC., ASUS
COMPUTER INTERNATIONAL, ACER INC., ACER
AMERICA CORPORATION,
Petitioners
______________________
2017-131, -132
______________________
On Petitions for Writ of Mandamus to the United
States District Court for the District of Delaware in Nos.
1:15-cv-01125-GMS and 1:15-cv-01170-GMS, Judge
Gregory M. Sleet.
______________________
ON PETITION
______________________
Before TARANTO, CHEN, and HUGHES, Circuit Judges.
TARANTO, Circuit Judge.
ORDER
In these patent infringement suits, which have been
consolidated for certain pre-trial proceedings and consoli-
dated for purposes of these mandamus petitions, ASUS-
Tek Computer Inc. and ASUS Computer International
(collectively, ASUSTek), and Acer Inc. and Acer America
Corp. (collectively, Acer), petition for a writ of mandamus
that would direct the United States District Court for the
Case: 17-131 Document: 34 Page: 2 Filed: 11/15/2017
2 IN RE: ASUSTEK COMPUTER INC.
District of Delaware to grant their joint motion to transfer
these cases to the United States District Court for the
Northern District of California. Specifically, ASUSTek
and Acer argue that the district court clearly abused its
discretion in determining that their venue defense had
been waived and that the Supreme Court’s decision in TC
Heartland LLC v. Kraft Foods Group Brands LLC, 137 S.
Ct. 1514 (2017), did not constitute an intervening change
of law. Koninklijke Philips N.V. and U.S. Philips Corpo-
ration oppose.
We recently held that the Supreme Court’s decision in
TC Heartland effected a relevant change of law and, more
particularly, that failure to present the venue objection
earlier did not come within the waiver rule of Federal
Rule of Civil Procedure 12(g)(2) and (h)(1)(A). In re Mi-
cron, No. 17-138 (Fed. Cir. Nov. 15, 2017). 1 In light of
that decision, we deem it the proper course here for Acer
and ASUSTek to first move the district court for reconsid-
eration of its order denying their joint motion to transfer.
We therefore deny the petitions for a writ of mandamus.
Any new petitions for mandamus from the district court’s
ruling on reconsideration will be considered on their own
merits.
Accordingly,
IT IS ORDERED THAT:
The petitions are denied.
1 ASUSTek and Acer did in fact raise a venue objec-
tion at the time they filed their first motion to dismiss in
March 2016, but they withdrew the objection in June
2016 after the issuance of In re TC Heartland LLC, 821
F.3d 1338 (Fed. Cir. 2016).
Case: 17-131 Document: 34 Page: 3 Filed: 11/15/2017
IN RE: ASUSTEK COMPUTER INC. 3
FOR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
s32