In re: Core Scientific, Inc. — Entry #17: RESPONSE of Respondent Malikie Innovations Ltd
Case: In re: Core Scientific, Inc. cafc · 26-140
filed April 28, 2026
What this document is
Docket entry #17 · filed May 20, 2026
RESPONSE of Respondent Malikie Innovations Ltd. and Key Patent Innovations Ltd. to Doc No. [2]. Service: 05/20/2026 by email. [1168545] [26-140] [Khue Hoang] [Entered: 05/20/2026 09:25 PM]
Why we have it
We follow this case because it names a company we track, although that company is not a party:
- Core Scientific: its name “Core Scientific, Inc.” appears in the case title.
- CoreWeave: its name “CoreWeave, Inc.” appears in a filing in this case.
…against CoreWeave, Inc. Core alleges that it is “entitled to indemnification from CoreWeave through one…
A free copy from the RECAP archive of federal court filings (mirrored at the Internet Archive), retrieved October 08, 2026. Federal court filings are public records.
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43 page(s), 67,329 characters, converted from the PDF's text layer · plain text.
Full text
No. 2026-140
IN THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
IN RE: CORE SCIENTIFIC, INC.,
Petitioner.
On Petition for a Writ of Mandamus to the United States District Court
for the Eastern District of Texas
No. 2:25-cv-00519-JRG-RSP
Hon. J. Rodney Gilstrap, District Judge
MALIKIE INNOVATIONS LTD. AND KEY PATENT
INNOVATIONS LTD.’S OPPOSITION TO
PETITION FOR A WRIT OF MANDAMUS
Brian C. Baran Khue V. Hoang
Philip J. Eklem REICHMAN JORGENSEN
REICHMAN JORGENSEN LEHMAN & FELDBERG LLP
LEHMAN & FELDBERG LLP 650 Fifth Avenue, Suite 2320
1909 K St. NW, Suite 800 New York, NY 10019
Washington, DC 20006 (212) 381-1965
(202) 894-7310 [email protected]
[email protected]
Matthew G. Berkowitz
REICHMAN JORGENSEN
LEHMAN & FELDBERG LLP
100 Marine Parkway, Suite 300
Redwood Shores, CA 94065
(650) 623-1401
[email protected]
Counsel for Respondents
Malikie Innovations Ltd. and Key Patent Innovations Ltd.
CERTIFICATE OF INTEREST
Counsel for Malikie Innovations Ltd. and Key Patent Innovations
Ltd. certify under Federal Circuit Rule 47.4 that the following
information is accurate and complete to the best of their knowledge:
1. The full names of the entities represented by undersigned counsel
in this case are Malikie Innovations Ltd. and Key Patent Innovations
Ltd.
2. Malikie Innovations Ltd. and Key Patent Innovations, Ltd. are
the real parties in interest. There are no other real parties in interest.
3. Malikie Innovations Ltd. is a wholly owned subsidiary of Key
Patent Innovations Ltd. Key Patent Innovations Ltd. is a wholly owned
subsidiary of New PP Licensing LLC. No other entity is a parent
corporation for or publicly held company owning 10% or more stock in
Malikie Innovations Ltd. or Key Patent Innovations Ltd.
4. Other than those who have already entered an appearance in this
Court, the following law firms, partners, and associates (a) appeared for
Malikie Innovations Ltd. and Key Patent Innovations, Ltd. in the
originating court or (b) are expected to appear in this Court:
REICHMAN JORGENSEN LEHMAN & FELDBERG LLP: Courtland L.
Reichman, Christine E. Lehman, Patrick R. Colsher, Michael M.
Polka, Michael Caulkins
MILLER FAIR HENRY PLLC: Andrea L. Fair, Claire A. Henry, Garrett
C. Parish
5. The related or prior cases relevant to this appeal are listed on a
separately filed notice.
6. No additional information is required under Fed. R. App.
P. 26.1(b) (organizational victims in criminal cases) or 26.1(c)
(bankruptcy case debtors and trustees).
Dated: May 20, 2026 /s/ Khue V. Hoang
Khue V. Hoang
i
TABLE OF CONTENTS
STATEMENT OF RELATED CASES ..................................................... vii
INTRODUCTION ....................................................................................... 1
BACKGROUND .......................................................................................... 3
A. Malikie sues in the Eastern District of Texas, where venue is
undisputedly proper. ....................................................................... 3
B. Core moves for a convenience transfer to the Western District,
contending that it relocated its allegedly infringing activities
there. ................................................................................................ 3
C. Malikie amends its complaint, asserting another patent with
allegations concededly tied to the Eastern District. ...................... 5
D. Relying only on the original complaint, the district court finds
that Core failed to prove that the Western District is “clearly
more convenient.” ............................................................................ 6
E. Meanwhile, Core files a third-party complaint involving its
Eastern District operations. ............................................................ 9
REASONS FOR DENYING THE PETITION ......................................... 10
I. Core Has No Clear and Indisputable Right to Mandamus. ............. 10
A. The district court was well within its discretion in evaluating
the disputed factors. ...................................................................... 12
1. The district court did not clearly abuse its discretion in
finding that the local interest factor was neutral. .................. 12
2. The district court did not clearly abuse its discretion in
evaluating judicial economy. .................................................... 18
3. The district court did not clearly abuse its discretion in
evaluating availability of compulsory process, witness
convenience, and access to proof. ............................................. 21
B. The district court was well within its discretion in weighing—
and not merely counting—the factors. ......................................... 26
II. Mandamus Is Not Appropriate Under the Circumstances. ............. 27
A. Core’s neglect of the “appropriate under the circumstances”
requirement is reason enough to deny mandamus. ....................... 28
B. Mandamus is inappropriate in light of the amended and third-
party complaints filed after briefing concluded. .......................... 30
CONCLUSION ......................................................................................... 34
ii
TABLE OF AUTHORITIES
Page(s)
Cases
In re Abbott Labs.,
96 F.4th 371 (3d Cir. 2024) .................................................................. 13
In re Acer Am. Corp.,
626 F.3d 1252 (Fed. Cir. 2010) ...................................................... 13, 15
In re Al-Nashiri,
835 F.3d 110 (D.C. Cir. 2016) .............................................................. 13
In re Apple Inc.,
52 F.4th 1360 (Fed. Cir. 2022)............................................................. 21
In re Apple Inc.,
979 F.3d 1332 (Fed. Cir. 2020) ....................................................... 28-30
Athena Diagnostics, Inc. v. Mayo Collaborative Servs., LLC,
915 F.3d 743 (Fed. Cir. 2019) .............................................................. 16
Cerence Operating Co. v. Samsung Elecs. Co.,
2025 WL 755219 (E.D. Tex. Mar. 10, 2025), adopted, 2025
WL 2492472 (E.D. Tex. July 25, 2025) ............................................... 20
In re Chamber of Com. of the U.S.,
105 F.4th 297 (5th Cir. 2024) .................................................. 11, 14, 26
Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367 (2004) ............................................................... 1, 10, 27-31
In re Clarke,
94 F.4th 502 (5th Cir. 2024) ........................................ 11, 13, 16, 19, 26
Continental Grain Co. v. Barge FBL-585,
364 U.S. 19 (1960) ............................................................................ 8, 19
Def. Distributed v. Bruck,
30 F.4th 414 (5th Cir. 2022) ................................................................ 18
iii
In re EMC Corp.,
501 F. App’x 973 (Fed. Cir. 2013) ............................................. 14, 17-18
Garcia v. Orta,
47 F.4th 343 (5th Cir. 2022) ................................................................ 16
In re Genentech, Inc.,
566 F.3d 1338 (Fed. Cir. 2009) ............................................................ 30
In re Google LLC,
2021 WL 4592280 (Fed. Cir. Oct. 6, 2021) (per curiam) .................... 20
In re Google LLC,
2021 WL 5292267 (Fed. Cir. Nov. 15, 2021) (per curiam) ................. 18
In re Google LLC,
58 F.4th 1379 (Fed. Cir. 2023)............................................................. 23
Smith ex rel. Hicks v. McDonough,
112 F.4th 1357 (Fed. Cir. 2024)........................................................... 30
Hoffman v. Blaski,
363 U.S. 335 (1960) .............................................................................. 17
Kranos IP Corp. v. Riddell Inc.,
2017 WL 3704762 (E.D. Tex. Aug. 28, 2017) ...................................... 24
In re McGraw-Hill Glob. Educ. Holdings,
909 F.3d 48 (3d Cir. 2018) ................................................................... 29
In re Monolithic Power Sys., Inc.,
50 F.4th 157 (Fed. Cir. 2022) (per curiam) .................................... 10-11
In re Nintendo Co.,
589 F.3d 1194 (Fed. Cir. 2009) ............................................................ 30
In re Planned Parenthood Fed. of Am., Inc.,
52 F.4th 625 (5th Cir. 2022) .......................................................... 23, 25
Prism Techs. LLC v. Sprint Spectrum L.P.,
849 F.3d 1360 (Fed. Cir. 2017) ............................................................ 24
In re Radmax Ltd.,
720 F.3d 285 (5th Cir. 2013) (per curiam) ......................... 21, 23, 26-27
iv
In re RingCentral, Inc.,
2023 WL 6368336 (Fed. Cir. Sept. 29, 2023) ...................................... 17
In re Samsung Elecs. Co.,
2 F.4th 1371 (Fed. Cir. 2021)................................................... 13, 17, 31
In re SAP Am., Inc.,
133 F.4th 1370 (Fed. Cir. 2025) (per curiam) ..................................... 19
SME Steel Contractors, Inc. v. Seismic Bracing Co.,
2025 WL 2057365 (Fed. Cir. July 23, 2025) ....................................... 16
In re TikTok, Inc.,
85 F.4th 352 (5th Cir. 2023) ........................................................... 24-25
In re TS Tech USA Corp.,
551 F.3d 1315 (Fed. Cir. 2008) ....................................................... 29-30
Van Dusen v. Barrack,
376 U.S. 612 (1964) .............................................................................. 26
In re Verinata Health, Inc.,
2017 WL 1422489 (Fed. Cir. Mar. 9, 2017) (per curiam) ................... 13
In re Vistaprint Ltd.,
628 F.3d 1342 (Fed. Cir. 2010) ...................................... 11-12, 19, 26-27
In re Volkswagen of Am., Inc.,
545 F.3d 304 (5th Cir. 2008) (en banc).................... 10-11, 22, 28, 30-31
In re Volkswagen of America, Inc.,
566 F.3d 1349 (Fed. Cir. 2009) ............................................................ 19
Statutes
28 U.S.C. §1404(a) ............................................................................ passim
Rules
Fed. R. Civ. P. 12(b)(6) ........................................................................... 3, 5
Fed. R. Civ. P. 72(a) ............................................................................ 16, 24
v
Other Authorities
Petition for Writ of Mandamus, In re Apple Inc.,
979 F.3d 1332 (Fed. Cir. 2020) (No. 20-135), Dkt.2-1 ........................ 28
Non-Confidential Response to Petition for Writ of Mandamus, In re
Apple Inc., 979 F.3d 1332 (Fed. Cir. 2020) (No. 20-135), Dkt.34 ...........29
vi
STATEMENT OF RELATED CASES
No appeal was previously taken from the underlying proceeding.
The patents asserted in the underlying case overlap with those
asserted in Malikie Innovations Ltd. v. MARA Holdings, No. 7:25-cv-
00222-DC-DTG (W.D. Tex.), and Malikie Innovations Ltd. v. Foundry
Digital LLC, No. 7:25-cv-00567-DC-DTG (W.D. Tex.).
vii
INTRODUCTION
Petitioner Core Scientific, Inc. asks this Court to look back to a no-
longer-operative complaint, override the district court’s careful
assessment of a now-outdated factual picture, and order a transfer to the
district next door—all without considering the operative pleadings that
root this case even deeper in the plaintiffs’ chosen forum. The Court
should decline to use “one of the most potent weapons in the judicial
arsenal” this way. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380
(2004) (cleaned up). The district court faithfully applied the law
governing transfers under 28 U.S.C. §1404(a) and reached a result that
falls comfortably within its discretion.
The district court reasonably found that Core failed to prove that the
Western District of Texas is a clearly more convenient forum than the
Eastern District. The bulk of the traditional factors are a wash: Core’s
infringing activities in both districts give them similar local interests,
and neither district has any real advantage on the judicial economy front.
True, a sliver of physical evidence is in the Western District, and Core
has five employee witnesses there. But all the rest of the evidence is
equally accessible, and the Eastern District is just as or more convenient
for every other witness. Balancing all those considerations, the court was
well within its discretion to find Core’s showing insufficient.
Core comes to this Court with a grab bag of complaints about the
district court’s analysis—fighting five of the eight factors, including
1
squabbles over their degree rather than their direction. At the heart of
those complaints is Core’s view that its past infringement in the Eastern
District that gave rise to this suit must be discounted in favor of its
current and future infringement in the Western District. Neither the law
nor the record supports anything of the sort. Which leaves Core with a
scattering of purported legal errors that came at its invitation and
without its objection and, in any event, lack support in binding precedent
or the record. Equally unavailing are Core’s attempts to fight the district
court’s factfinding. As the court reasonably recognized, the record refutes
Core’s narrative.
But even if Core could establish a clear and indisputable right,
mandamus would still be inappropriate here. Core does not even attempt
to explain why mandamus is appropriate under the circumstances. Nor
could it. The now-operative amended complaint and Core’s own third-
party complaint—both filed after the close of briefing on the transfer
motion—cement this case’s foundation in the Eastern District. And it is
the operative pleadings that matter. So even if Core had identified a clear
and indisputable error in how the district court analyzed the dispute
based on the original complaint, these developments made any error
harmless. Correcting the court’s discussion of stale facts is not what
mandamus is for. The petition should be denied.
2
BACKGROUND
A. Malikie sues in the Eastern District of Texas, where venue
is undisputedly proper.
Plaintiffs Malikie and Key Patent (together, “Malikie”), Irish entities
headquartered in Ireland, brought this patent infringement suit in May
2025 against Core Scientific, Inc., a Delaware corporation now
headquartered in Florida. Appx26-27; Pet.19 n.6. Malikie seeks damages
for Core’s infringement since January 2024, when Core emerged from
bankruptcy. Appx50(¶44).
Malikie filed in the Eastern District of Texas, alleging that Core
engaged in infringing cryptocurrency mining operations there. Appx74-
76(¶¶110-16). There is no dispute that venue is proper and that Core is
subject to personal jurisdiction in the Eastern District.
B. Core moves for a convenience transfer to the Western
District, contending that it relocated its allegedly
infringing activities there.
In July 2025, Core moved to dismiss under Rule 12(b)(6). Appx19
(Dkt.20). A few days later, Core moved under §1404(a) for a convenience
transfer to the Western District of Texas. Appx20 (Dkt.23).
Despite contending that “no party has relevant ties” to the Eastern
District, Core acknowledged that the alleged infringement—involving its
bitcoin mining operations—had “historically” occurred at its Denton
County data center in the Eastern District, among other facilities.
Appx291-294. See also Appx293 (Core operates ten U.S. data centers,
3
including its Denton facility). Core acknowledged that some employees
who worked on bitcoin mining at the Denton facility during the period of
alleged infringement still work there. Appx311(¶14); accord Pet.5
(“Denton mining technicians” who stayed “transitioned to new roles”).
And Core acknowledged that the relevant documentary evidence and
source code is stored on Core’s company “share drive,” Appx313(¶23), and
so is just as accessible in the Eastern District as anywhere else with an
internet connection. Appx5-6; Appx780 (no dispute about accessibility).
Core’s main gripe with the Eastern District was that it wound down
its bitcoin mining operations in Denton in late 2024—just a few months
before Malikie sued—as part of its “strategic transition” to housing “high
performance computing (HPC)” machines there “for third-party
customers” to “support[] artificial intelligence-related workloads.”
Appx292-295 (cleaned up). Meanwhile, Core has continued to mine
bitcoin in the Western District. Appx299-300. So although Core’s “alleged
acts of infringement” had concededly “occurred at one time in EDTX,”
Appx778, Core insisted that because “none of the allegedly infringing
activity” was “currently tak[ing] place” there, the Eastern District no
longer had any connection to this suit, Appx299.
Otherwise, Core’s motion rested on its assertion that five of its
preferred employee witnesses are based at its Austin campus in the
Western District, Appx302-303, while its employees and former
employees in the Eastern District who worked on bitcoin mining are
4
mostly “lower-level employees” whose jobs “do not require a college
degree” and who it therefore assumes cannot speak to the “complex
mathematical algorithms covered by the asserted patents,” Appx781 &
nn.5-6.
The parties conducted venue discovery, SAppx1-2, and wrapped up
briefing in October 2025, Appx21.
C. Malikie amends its complaint, asserting another patent
with allegations concededly tied to the Eastern District.
In November 2025, before any ruling on transfer, Malikie sought
leave to amend its complaint. SAppx7-8. The district court granted leave
in February 2026, SAppx91, and the amended complaint is now Malikie’s
operative pleading, SAppx18-90.
The amended complaint adds a patent (the ’039 patent) and alleges
that Core infringes that patent through both its bitcoin mining and HPC
operations. SAppx7-8; SAppx73-75(¶¶114-19); SAppx86-88(¶¶165-72).
The amended complaint also adds allegations that Core infringes the
previously asserted ’286 patent through its HPC operations in addition
to its bitcoin mining. SAppx8; SAppx85-86(¶¶157-64). The accused HPC
operations include those that Core admits are ongoing at its Denton
facility in the Eastern District.
Core responded by renewing its Rule 12(b)(6) motion. Appx23
(Dkt.79). But Core did not refile or amend its transfer motion and did not
5
otherwise address whether or how the amended complaint affected the
transfer analysis.
D. Relying only on the original complaint, the district court
finds that Core failed to prove that the Western District is
“clearly more convenient.”
The magistrate judge denied transfer in a March 2026 order. Appx13.
After Core objected, the district court reviewed the order, “agree[d] with”
the magistrate judge’s reasoning, and found that Core failed to show that
the order “was clearly erroneous or contrary to law.” Appx1. The court
therefore overruled Core’s objections and adopted the magistrate judge’s
order. Id.
Applying Fifth Circuit law, the district court analyzed the §1404(a)
factors and found that Core failed to prove that the Western District “is
clearly more convenient.” Appx13. The court discussed only Malikie’s
initial complaint and the parties’ related briefing; there is no indication
that it considered the amended complaint’s impact. Appx2-13.
The court reviewed deposition testimony and Core documents to find
that the first private interest factor—access to sources of proof—only
slightly favored transfer. Appx5-6. The court found that most of the
evidence is stored on Core’s cloud servers and so is equally accessible in
both districts by Core’s own admission. Appx6. The only weight on the
other side of the scale was that the accused mining machines are
available to inspect at Core’s Western District data center. Id. But the
court found that “any purported benefit to being able to inspect the
6
machines … is minimal,” reasoning that Malikie’s “infringement read
depends on functionality that is controlled by software and firmware”
that is undisputedly stored on Core’s cloud servers or available from
public websites and is thus “equally accessible” from either district. Id.
The court found that the second private interest factor—availability
of compulsory process for unwilling witnesses—weighed against transfer.
Appx6-8. It found that Core had not identified any unwilling witnesses,
while Malikie had identified over a dozen Core employees with relevant
knowledge who worked at the Denton facility, at least nine of whom are
former employees outside Core’s control. Appx6-7. It also found that
Malikie had identified knowledgeable third-party witnesses at
BlackBerry (a predecessor-in-interest to the asserted patents) and PPS
(Malikie’s licensing advisor), both in the Eastern District. Appx7.
Although the court recognized that the witnesses were within both
districts’ subpoena power, it found that they would need to “travel
significantly less distance to get to Marshall” than to Austin. Appx7.
Next, the court found that the third private interest factor—cost of
attendance for willing witnesses—only slightly favored transfer. Appx8-
9. On the one hand, the court afforded “some weight” to the convenience
of Core’s five employee witnesses who live in Austin. Appx9. On the other
hand, it applied the Fifth Circuit’s 100-mile rule to find that it would be
“marginally less expensive” for Malikie’s employee witnesses to travel
from Ireland to Marshall. Id. Applying the same rule, the court found
7
that Core’s two employees outside Austin “effectively cancel each other
out.” Id. The scales thus tipped in favor of transfer, but not by much. Id.
The court next found that the “practical problems” factor was neutral.
Appx9-10. After Core abandoned other arguments, Core was left with its
assertion that Malikie’s pending suit against another defendant in the
Western District—filed the same day as this one—justified transfer. Id.
The court disagreed because “Core ha[d] not argued that the parallel
case” involved “‘precisely the same issues’ within the meaning of ”
Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26 (1960). Appx10.
Turning to the public interest factors, Core conceded, and the court
accepted, that all but local interests were neutral. Appx11-13. The court
found that the local interest factor, too, was neutral. Id. While
acknowledging that Core had “moved any allegedly infringing machines
away from this District,” the court emphasized that Core “cannot hide
from the fact that a significant share of the alleged infringement giving
rise to this suit occurred” in the Eastern District. Appx12. The Eastern
District’s resulting local interest was offset, however, by the court’s
finding that “a similar share of infringing activity also occurred in the
[Western District] and continues to occur there.” Appx12-13.
Putting it all together, one factor disfavored transfer, two slightly
favored transfer, and the rest were neutral. The court, “[h]aving reviewed
each factor, on balance,” found that Core had not met its “substantial
burden.” Appx5, Appx13.
8
E. Meanwhile, Core files a third-party complaint involving
its Eastern District operations.
Three days after the magistrate judge denied its transfer motion,
Core filed a third-party complaint against CoreWeave, Inc. Core alleges
that it is “entitled to indemnification from CoreWeave through one or
more agreements” granting “CoreWeave a license to use [Core’s] data
center(s) for CoreWeave’s HPC operations.” SAppx94(¶2). Core alleges
that in February 2025, it and CoreWeave “announced a $1.2 billion
expansion” at Core’s Denton facility “to meet CoreWeave’s growing need
for robust, high-density infrastructure to support its HPC operations.”
SAppx97(¶15). As part of that deal, Core contends, “CoreWeave has
installed HPC devices and equipment” in Core’s “Denton, Texas data
center.” SAppx98(¶16). And Core alleges that Malikie’s “infringement
contentions for the ’286 and ’039 Patents specifically target CoreWeave
and the [HPC] devices hosted at [Core’s] facilities,” including in the
Eastern District. SAppx98(¶¶16-17).
Because CoreWeave was not yet in the case, venue discovery did not
address its presence in the Eastern District.
***
Two weeks after the district court’s order, Core sought mandamus.
Its petition ignores the amended and third-party complaint. This Court
ordered that any response and reply “should address the relevance, if
any, of ” those pleadings. Dkt.7.
9
REASONS FOR DENYING THE PETITION
Mandamus is “a drastic and extraordinary remedy” justified “only
[by] exceptional circumstances amounting to a judicial usurpation of
power or a clear abuse of discretion.” Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367, 380 (2004) (cleaned up). Because “the writ is one of the most
potent weapons in the judicial arsenal, three conditions must be satisfied
before it may issue.” Id. (cleaned up). First, the petitioner “must have no
other adequate means to attain the relief ” requested. Id. at 380-81
(cleaned up). Second, the petitioner must demonstrate a “clear and
indisputable” “right to issuance of the writ.” Id. at 381 (cleaned up). And
third, “even if the first two prerequisites have been met, the issuing court,
in the exercise of its discretion, must be satisfied that the writ is
appropriate under the circumstances.” Id.
Core falls far short of meeting these requirements. It cannot establish
a clear and indisputable right to relief. And it has not even attempted to
show that mandamus is appropriate under the circumstances, which
include Malikie’s now-operative amended complaint and Core’s own
third-party complaint—both of which tilt the scales even further toward
the Eastern District.
I. Core Has No Clear and Indisputable Right to Mandamus.
Core bore the burden to prove that the Western District was “clearly
more convenient” than the Eastern District. In re Volkswagen of Am.,
Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc); see In re Monolithic
10
Power Sys., Inc., 50 F.4th 157, 161 (Fed. Cir. 2022) (per curiam) (regional
circuit law governs). To meet that standard, Core needed to prove both
“that the marginal gain in convenience” in its preferred forum “will be
significant” and “that its evidence makes it plainly obvious—i.e., clearly
demonstrated—that those marginal gains will actually materialize in the
transferee venue.” In re Chamber of Com. of the U.S., 105 F.4th 297, 304
(5th Cir. 2024) (attribution omitted); see also In re Clarke, 94 F.4th 502,
508 n.3 (5th Cir. 2024) (“[A] mere preponderance of the evidence is
insufficient.”). Without such a showing, Malikie’s “choice should be
respected.” Volkswagen, 545 F.3d at 315.
To guide district courts’ analysis, the Fifth Circuit has adopted a now-
familiar set of factors. Volkswagen, 545 F.3d at 315. Although they “are
appropriate for most transfer cases,” the factors “are not necessarily
exhaustive or exclusive,” and none is dispositive. Id.
District courts have “broad discretion in transfer decisions.” In re
Vistaprint Ltd., 628 F.3d 1342, 1344 (Fed. Cir. 2010) (applying Fifth
Circuit law). This Court’s “task on mandamus is limited to seeing if there
was such a clear abuse of discretion that refusing transfer amounted to a
patently erroneous result.” Monolithic, 50 F.4th at 161 (applying Fifth
Circuit law). Unless there is “only one correct outcome” from “a
meaningful application of the §1404(a) factors” in a particular case,
mandamus is unwarranted. Vistaprint, 628 F.3d at 1347.
11
Straining to meet that standard, Core contends that the district court
got five of the eight factors wrong. It quibbles with the court’s case-
specific weighing of local interests, Pet.14-21; alleges legal and factual
errors as to the “practical problems” factor, Pet.21-27; and quarrels with
the court’s findings that the bulk of the relevant evidence is available
electronically and that Marshall is just as or more convenient than
Austin for every potential witness other than the five Core employees
who live there, Pet.27-39. None of Core’s complaints holds water.
A. The district court was well within its discretion in
evaluating the disputed factors.
The district court carefully analyzed each factor and found that one
disfavored transfer, two only slightly favored transfer, and the rest were
neutral. Appx2-13. “Having reviewed each factor, on balance,” in light of
the record, the court reasonably found that Core had not met its
“substantial burden.” Appx5, Appx13. The court’s analysis reflects “a
meaningful application of the §1404(a) factors” and lands comfortably
within the “reasonable range of choice.” Vistaprint, 628 F.3d at 1347.
None of Core’s contrary arguments establishes a clear abuse of discretion.
1. The district court did not clearly abuse its discretion
in finding that the local interest factor was neutral.
The district court reasonably found that both districts had a similar
local stake in this case. Appx11-13. Core’s lead argument attacks that
finding on legal and factual grounds but comes up short on both counts.
12
a. Core first contends that the district court “committed legal error”
by failing to “analyze the evidence in a temporally correct manner.”
Pet.15. By that, Core seems to mean that as a matter of law, “ongoing
conduct and evidence present in the Western District” necessarily
outweighed past infringement in the Eastern District. Pet.15-17. But
Core cannot find a single case adopting such a rule—let alone the binding
precedent required for mandamus. See, e.g., In re Verinata Health, Inc.,
2017 WL 1422489, at *2 (Fed. Cir. Mar. 9, 2017) (per curiam) (“clear and
indisputable” right depends on “[t]he current state of the binding
precedent”). 1
That is because binding precedent imposes no such rule. As Core’s
own cited case explains, the local interest inquiry focuses on “significant
connections between a particular venue and the events that gave rise to
a suit.” Pet.15 (quoting In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed.
Cir. 2010) (applying Fifth Circuit law)); accord Clarke, 94 F.4th at 511.
As the past tense suggests, that includes past events. See, e.g., In re
Samsung Elecs. Co., 2 F.4th 1371, 1380 (Fed. Cir. 2021) (applying Fifth
Circuit law) (considering where “[t]he relevant events leading to the
infringement claims here took place”). After all, the factor’s point is to
1 See also, e.g., In re Abbott Labs., 96 F.4th 371, 381 (3d Cir. 2024) (no
“clear and indisputable abuse of discretion” absent “binding authority”
(attribution omitted)); In re Al-Nashiri, 835 F.3d 110, 137 (D.C. Cir. 2016)
(“[O]pen questions are the antithesis of the ‘clear and indisputable’ right
needed for mandamus relief.” (cleaned up)).
13
evaluate whether “the citizens of the forum have a sufficient interest in
the controversy to justify burdening them with jury duty.” Chamber of
Com., 105 F.4th at 308 (attribution omitted). Finding facts about the past
and adjudicating past wrongs is what juries and federal courts do every
day. Nothing supports Core’s view that infringers can destroy a
community’s localized interest in a dispute just by fleeing the forum.
With no support from binding precedent, Core hangs its hat on this
Court’s statement in In re EMC Corp., 501 F. App’x 973 (Fed. Cir. 2013),
that transfer motions “are to be decided based on the situation which
existed when suit was instituted,” id. at 976 (cleaned up). See Pet.17. To
start, Core ignores that statement’s context, which had nothing to do with
weighing local interests. Rather, the Court was explaining that district
courts cannot “rely on judicial economy involved in retaining the very
cases that were the subject of the transfer motion.” EMC, 501 F. App’x at
976.
But no matter. The district court here did exactly what Core says it
should have done: The court recognized that the situation “when
[Malikie’s] complaint was filed,” Pet.17, was that Core had been allegedly
infringing the asserted patents in the Eastern District for years, and the
court weighed the relative local interests accordingly. Appx11-13; supra
pp.3-4, 8. There was no error in declining to let Core “hide from the fact”
of its past conduct in the forum. Appx12.
14
b. Core’s quibbles with the district court’s factfinding fare no better.
The court was well within its discretion to find that mining 990.47 bitcoin
in the Western District and 771.19 bitcoin in the Eastern District, Pet.18,
amounted to “a similar share of infringing activity.” Appx12-13. Core
tries slicing and dicing the numbers every which way—number of
bitcoins, number of mining machines, bitcoins per month, percentage
differences over this range or that, dollar values—but nothing it tries
adds up to an abuse of discretion, let alone mandamusable error. Contra
Pet.18-19 & nn.4-5. Indeed, Core cannot even keep its own asserted facts
straight; its bottom-line claim that “the Pecos facility outpaced the
Denton facility during the relevant time period by anywhere from 50-
75%” finds no support in the cited source, see Appx310-311, and flatly
contradicts its own figures. See Pet.18 (starting with 28% more bitcoin
and inflating the figure to 43% by considering post-complaint events,
contrary to the purported date-of-the-complaint standard); see also id.
(“more miners 70% of the time”); Pet.18-19 (monthly figures with no
relationship to the asserted percentages).
At the end of the day, the court reasonably found that Core’s
sprawling Denton data center that employed dozens of residents and
generated tens of millions in revenue from allegedly infringing activity,
see Appx533-539, gave rise to “significant connections” between this suit
and the Eastern District, see Acer, 626 F.3d at 1256. And it reasonably
found that those connections were on par with the Western District’s.
15
Finally, Core contends that “physical evidence[] and key witnesses
currently reside in the Western District” and should have tipped the
scales in favor of transfer. Pet.19-20. Core overstates both the facts, see
infra pp.21-26 (discussing the evidence and witnesses under the private
interest factors), and their significance to the analysis. Because the focus
is “on the events—not the parties,” “the parties’ connections to the venue”
do not count. Clarke, 94 F.4th at 511. And although witnesses’ locations
can be “useful proxies,” those “proxies … can never subsume the ultimate
inquiry” into “the interest of non-party citizens in adjudicating the case.”
Id. Besides, Core failed to preserve this argument in its objections to the
magistrate judge’s order. See Appx1018-1019. Objections not raised
below are forfeited. See, e.g., Fed. R. Civ. P. 72(a) (“A party may not
assign as error a defect in the order not timely objected to.”); Garcia v.
Orta, 47 F.4th 343, 349 (5th Cir. 2022) (holding that the defendants
forfeited “arguments not presented to the district court” when
challenging a magistrate judge’s decision). 2
c. Malikie’s amended complaint (and, for that matter, Core’s third-
party complaint) confirms the district court’s conclusion. It is the
operative pleadings that say which events gave rise to this suit. As this
2 See also Athena Diagnostics, Inc. v. Mayo Collaborative Servs., LLC,
915 F.3d 743, 756 (Fed. Cir. 2019) (regional circuit law governs “waiver”);
SME Steel Contractors, Inc. v. Seismic Bracing Co., 2025 WL 2057365, at
*9 (Fed. Cir. July 23, 2025) (applying regional circuit law to preservation
under Rule 72(a)).
16
Court’s binding precedent applying Fifth Circuit law put it, once Malikie
“filed [its] amended complaint[], the original complaint[]” became a “dead
letter[] and no longer performed any function in the case[].” Samsung, 2
F.4th at 1376 (cleaned up). “That understanding has been uniformly
applied in a variety of contexts,” including “for transfer under §1404(a).”
Id. (discussing §1404(a)’s venue requirement); accord In re RingCentral,
Inc., 2023 WL 6368336, at *2 (Fed. Cir. Sept. 29, 2023) (no clear abuse of
discretion “in resting [the] venue determination on [facts] identified in
Marble’s amended complaint”). There is no reason to apply that uniform
rule to §1404(a)’s threshold venue inquiry while ignoring it for the
convenience analysis. 3
The operative complaint refutes Core’s premise that this suit does not
concern any ongoing activity in the Eastern District. Beyond Core’s past
infringement in Denton, the operative complaint alleges ongoing
infringement through Core’s substantial HPC operations there. Supra
pp.5-6. Core’s third-party complaint is likewise directed to events
involving the Denton facility. Supra p.9. Although the district court does
3 There is no tension between this point and the rule that courts
cannot manufacture judicial economy interests by making progress on
the merits after a transfer is requested, see EMC, 501 F. App’x at 976
(relying on Hoffman v. Blaski, 363 U.S. 335, 343 (1960)). Looking to the
operative complaint to determine what a case is about and what local
interests it implicates does not present any similar concern. See
Samsung, 2 F.4th at 1376 (distinguishing Hoffman because it “did not
involve or address the filing of an amended complaint”).
17
not appear to have considered them, the operative pleadings only
reinforce its assessment of the relative local interests. See Def.
Distributed v. Bruck, 30 F.4th 414, 435 (5th Cir. 2022) (“[T]he place of the
alleged wrong is one of the most important factors in venue
determinations.” (attribution omitted)).
2. The district court did not clearly abuse its discretion
in evaluating judicial economy.
Core next attacks the district court’s finding that no “practical
problems” supported transfer, asserting both that the court “incorrectly
diminished the significance of Malikie’s co-pending suit in the Western
District” and should have “credit[ed] Core’s prompt motion to transfer.”
Pet.21-27. The court reasonably disagreed.
a. There was nothing wrong with the court’s conclusion that transfer
would not support judicial economy. Appx10. As discussed,
“[c]onsiderations of judicial economy are generally based on the situation
at the time the suit was filed.” In re Google LLC, 2021 WL 5292267, at *3
(Fed. Cir. Nov. 15, 2021) (per curiam) (citing EMC, 501 F. App’x at 976).
Malikie filed its Western District suit the same day as this one, so there
was no “familiarity with the patents and the triable issues” to take
advantage of. Contra Pet.24-25. Later developments like which court got
to claim construction first cannot change that reality. Contra Pet.24. Just
as “progress after filing” in the case at hand generally cannot create
judicial economy interests that justify denying transfer, there is no
18
reason to allow another case’s progress while awaiting a transfer decision
to wind up forcing a transfer. See In re SAP Am., Inc., 133 F.4th 1370,
1374-75 (Fed. Cir. 2025) (per curiam).
Core invited the statement about Continental Grain that it now
complains was legal error. Compare Appx782 (Core’s reply invoking
Continental Grain’s “precisely the same issues” point (quoting 364 U.S.
at 26)), and Appx1018 (same in objections); with Pet.22 (arguing that
“precisely the same issues” is the wrong standard). Regardless, even
assuming that the cases present “precisely the same issues,” there was
no reason at the outset to favor one district over another because both
cases were in their infancy, contra Pet.22-25. See Clarke, 94 F.4th at 510
(“At bottom, the transfer factors are relative.”).
Neither precedential case Core cites says otherwise. In re Volkswagen
of America, Inc., 566 F.3d 1349 (Fed. Cir. 2009), found no error in keeping
overlapping cases together in the district where they were filed so as to
avoid creating inefficiencies by splitting them up, id. at 1351. So too for
Vistaprint, where the plaintiff’s chosen forum also had “substantial
experience” with “prior litigation” involving the same patent. 628 F.3d at
1344. Core identifies no case compelling district courts to use §1404(a) to
unite cases filed the same day in different districts just because they
overlap.
b. Nor does it matter that Core “promptly filed” its motion. Contra
Pet.25-27. For starters, the district court reasonably found that Core
19
“drop[ped]” this argument in its reply, Appx10. See Appx782 (Core’s reply
addressing only the alleged parallel case). That was reason enough to
reject it. Contra Pet.25 (falsely asserting that “[t]he court noted Core’s
argument but then made no further mention of it” (citing Appx9)).
Even setting aside Core’s forfeiture, the district court considered its
argument and found it “unpersuasive,” Appx10—and rightly so. Below,
Core cited only a magistrate judge decision finding a transfer motion
untimely. Appx304 (citing Cerence Operating Co. v. Samsung Elecs. Co.,
2025 WL 755219, at *6 (E.D. Tex. Mar. 10, 2025), adopted, 2025 WL
2492472 (E.D. Tex. July 25, 2025)). Core made no attempt to explain how
it got from its obligation to act promptly to the view that it should get
extra credit for doing so. Its petition is no better on that score. True, late
motions weigh against transfer. See, e.g., In re Google LLC, 2021 WL
4592280, at *6 (Fed. Cir. Oct. 6, 2021) (per curiam). But Core offers no
case saying that prompt motions can be (let alone must be) counted in
favor of transfer. A timely filing is table stakes—not a reason to reduce
the movant’s heavy burden. See id. (finding the motion timely without
suggesting that timeliness favored transfer).
c. Core’s real complaint seems to be that the district court took too
long. Pet.25-27. But it makes no argument that the court used that time
as a reason for denying transfer. Id. Because that is not what the court
did. Appx10.
20
If Core wanted a speedier decision, it should not have spent five
months sitting around after briefing closed. By Core’s own account, it
first complained to the district court about the timing in February, a
month before the ruling. Pet.26 n.7. If Core wanted a stay earlier, it
should have asked for one. And if it thought the magistrate judge was
moving too slowly, it should have sought relief from the district judge
and, failing that, from this Court. See In re Apple Inc., 52 F.4th 1360,
1361 (Fed. Cir. 2022) (mandamus is available “to correct a clearly
arbitrary refusal to act on a longstanding pending transfer motion”). Now
that Core waited for the district court’s decision, it cannot complain about
the timing; nothing can be done about it without a time machine.
3. The district court did not clearly abuse its discretion
in evaluating availability of compulsory process,
witness convenience, and access to proof.
Core next attempts to flyspeck the district court’s factfinding as to
availability of compulsory process, witness convenience, and access to
proof. Pet.27-39. The record confirms the court’s conclusions.
a. Compulsory process. Core insists that even though the court
found that travel to Marshall would be more convenient for nonparty
witnesses, this factor should have been neutral because those witnesses
are “within the subpoena powers of both districts.” Pet.27-28. Not so. The
Fifth Circuit’s two-sentence approval of one court’s analysis does not
establish any categorical rule, much less prohibit considering nonparty
witnesses’ convenience. In re Radmax Ltd., 720 F.3d 285, 288 (5th Cir.
21
2013) (per curiam); see Volkswagen, 545 F.3d at 316 (even under the
compulsory process factor, the “transfer analysis is concerned with
convenience”).
Core’s contrary view lacks precedential support and misses the forest
for the trees. Because Core asks to move the case to the venue next door,
the nonparty witnesses here happen to be within both courts’ subpoena
range. But that they can be compelled to travel to either court does not
mean the district court lacked discretion to find that the relative
inconvenience of traveling to Austin compared to Marshall weighed
against transfer, whether under this factor or otherwise. Far from
endorsing such empty formalism, the Fifth Circuit has made clear that
the factors are neither “exhaustive [n]or exclusive.” Volkswagen, 545 F.3d
at 315. After all, Core’s ultimate burden was to show that the Western
District is “clearly more convenient.” Id. If the need for Core’s Austin-
based witnesses to take a short road trip tilts the scales toward transfer,
Pet.33-34, then so too should the need for the Eastern District witnesses
to do the same thing tilt against transfer.
Core next asserts that without “actual evidence of witness
unwillingness,” the district court had to treat this factor as neutral.
Pet.30. Here, too, Core mistakes a decision finding no clear and
indisputable error in one case-specific assessment with a categorical rule
governing all cases—and misreads its cited authority to boot. What
Core’s case actually says is that the district court was within its
22
discretion to find this factor neutral where the petitioners “failed to
identify any witnesses who would be unwilling to testify,” reasoning that
the factor “receives less weight when it has not been alleged or shown
that any witness would be unwilling.” In re Planned Parenthood Fed. of
Am., Inc., 52 F.4th 625, 630-31 (5th Cir. 2022) (emphasis added)
(attribution omitted); see Radmax, 720 F.3d at 288-29 (no relevant
discussion).
Finally, Core complains that the district court should not have
considered former Core employees who concededly worked at Core’s
bitcoin mining facility because, according to Core, they “have little to no
relevant knowledge about the bitcoin mining activities at issue.” Pet.30-
31. The court was within its discretion not to take Core’s word for it.
Appx7 (finding that the witnesses “have knowledge about … the
allegedly infringing activity (bitcoin mining) that took place in this
District”). Core provided no evidence about any specific former
employees’ knowledge; it pointed only generally to their job titles.
Appx781 & n.6; Appx786-91. This Court’s decision in In re Google LLC,
58 F.4th 1379 (Fed. Cir. 2023), is not to the contrary. There, unlike here,
“Google provided sworn, unequivocal deposition testimony from each
employee explaining that none of them work on the accused features.” Id.
at 1384.
b. Witness convenience. Core complains that the district court
“erroneously minimized” the inconvenience to its witnesses by “relying
23
on Kranos IP … for the proposition that the convenience of party-
employee witnesses is not as important.” Pet.32-34. But that was what
Core invited the magistrate judge to do. Appx303-304 (Core “understands
that the Court ‘gives the convenience of employee witnesses less
weight’ … .” (quoting Kranos IP Corp. v. Riddell Inc., 2017 WL 3704762,
at *12 (E.D. Tex. Aug. 28, 2017)). So it is no surprise that Core failed to
object on this basis. See Appx1016-1017. Because Core first invited and
then failed to object to the claimed error, the argument it now makes for
the first time on mandamus is forfeited. See, e.g., Prism Techs. LLC v.
Sprint Spectrum L.P., 849 F.3d 1360, 1373 (Fed. Cir. 2017) (“[A] party
may not complain on appeal of errors that he himself invited or provoked
the court to commit.” (cleaned up)); Fed. R. Civ. P. 72(a).
As for witnesses outside Austin, the district court reasonably found
their convenience to be a wash under the Fifth Circuit’s 100-mile rule.
Appx9. That the court did not give weight to Core’s two traveling
witnesses’ preference for working from Core’s Austin office rather than a
hotel was not a clear abuse of discretion; Core’s own witness testified that
Core’s employees can access their work online, Appx544, and Core does
not suggest otherwise.
Core also suggests that the convenience of witnesses who live in
neither forum must be ignored. Pet.32-33. Binding Fifth Circuit
precedent says otherwise. In re TikTok, Inc., 85 F.4th 352, 361-62 (5th
Cir. 2023) (holding that the district court clearly abused its discretion in
24
failing to conclude that, for witnesses in China, California was closer and
therefore more convenient than Texas).
c. Access to proof. Finally, Core complains that the district court
should have weighed access to proof “strongly,” rather than slightly, in
favor of transfer. Pet.37. The court was right to reject its view.
The court correctly found that the Western District had no relative
advantage over the Eastern District in accessing electronic documents—
the bulk of the evidence. Appx5-6; Appx540-541. Core’s “own witness
identified” the electronic evidence Core relies on as “stored on cloud
servers” that are “equally accessible” in both districts. Appx6; see
Planned Parenthood, 52 F.4th at 630-31 (no error in finding that
electronic evidence was “equally accessible in either forum”). Core’s cited
case is not to the contrary; TikTok involved genuine barriers to accessing
source code, see 85 F.4th at 359 (“source code [was] the most important
evidence” and was more accessible from the transferee forum because
“employees with [the necessary] security clearance” were there). Here,
Core concedes that the relevant “code is available through the cloud and
can be (and has been) made available at other locations.” Pet.38.
Nor do any of Core’s arguments undermine the finding that any
benefit of inspecting the physical mining machines is “minimal” in light
of this suit’s focus on software and firmware that “is again equally
accessible from cloud servers (where it is stored) and websites.” Appx6;
see Planned Parenthood, 52 F.4th at 630 (“The location of evidence bears
25
much more strongly on the transfer analysis when … the evidence is
physical in nature.”). Core’s speculation about a “potential need to inspect
those machines” for unspecified purposes, Pet.38, falls far short of
making it “plainly obvious” that any “marginal gains” in convenience
“will actually materialize in the transferee venue.” Chamber of Com., 105
F.4th at 304. In any event, there is no dispute that Core houses the
accused HPC machines in Denton. Supra p.5.
B. The district court was well within its discretion in
weighing—and not merely counting—the factors.
Finally, Core hints in passing that because two factors slightly
favored transfer and one disfavored it, the raw counting of factors should
have carried the day. See Pet.39. But as Core’s own cases confirm, the
Fifth Circuit has long “cautioned against a raw counting of the factors
that weighs each the same” or that gives any one factor “dispositive
weight.” Clarke, 94 F.4th at 509 (cleaned up); accord Radmax, 720 F.3d
at 290 n.8 (“We do not suggest—nor has this court held—that a raw
counting of the factors in each side, weighing each the same and deciding
transfer only on the resulting ‘score,’ is the proper methodology.”).
Section 1404(a) instead “commits the balancing determination to the
sound discretion of the trial court based not on per se rules but rather on
an ‘individualized, case-by-case consideration of convenience and
fairness.’” Vistaprint, 628 F.3d at 1346 (quoting Van Dusen v. Barrack,
376 U.S. 612, 622 (1964)). Indeed, the Supreme Court “has repeatedly
26
rejected the use of per se rules in” this context. Id. (collecting cases). This
aversion to bright-line rules is no mere “formality”; rather, it reflects “a
longstanding recognition that a trial judge has a superior opportunity to
familiarize himself or herself with the nature of the case and the probable
testimony at trial, and ultimately is better able to dispose of these
motions.” Id.
Just as in Vistaprint, the district court here conducted a “thorough
analysis” and made its decision “based on an individualized, case-by-case
consideration of the relevant factors, balancing convenience and
efficiency.” 628 F.3d at 1347 (cleaned up). That does not add up to
mandamus. This is far from a case with “[w]ith nothing on the transferor-
forum side of the ledger,” Pet.39 (attribution omitted), or with “no
connection” to the plaintiffs’ chosen forum, Radmax, 720 F.3d at 290.
***
For all these reasons, Core cannot establish a clear abuse of discretion
and therefore has not demonstrated a “clear and indisputable” right to
relief. Cheney, 542 U.S. at 381 (attribution omitted).
II. Mandamus Is Not Appropriate Under the Circumstances.
In any event, Core cannot establish “that the writ is appropriate
under the circumstances,” as Cheney’s third requirement mandates. 542
U.S. at 381. Core does not even try—nor would it have succeeded.
27
A. Core’s neglect of the “appropriate under the circumstances”
requirement is reason enough to deny mandamus.
Despite unambiguous Supreme Court precedent requiring a finding
“that the writ is appropriate under the circumstances,” Cheney, 542 U.S.
at 381, Core ignores this requirement. The closest Core comes is its
unexplained contention that “grant of the writ is appropriate here,”
Pet.40, plus a hint in its standard of review section that the requirement
does not apply to §1404(a) cases, Pet.11. That is not the law.
To be sure, Core identifies one case in which this Court observed that
the test “essentially reduces to the first factor” in §1404(a) cases. In re
Apple Inc., 979 F.3d 1332, 1336-37 (Fed. Cir. 2020); see Pet.11. But Core
is wrong to read that passing observation as a categorical rule. As the
Court’s choice of “essentially”—and not, say, “necessarily” or
“categorically”—suggests, deciding that there was nothing beyond the
merits to consider in one particular §1404(a) dispute is a far cry from
holding that there can never be.
1. For starters, nobody in Apple advanced any discretionary
considerations. The petitioner asserted incorrectly that under Fifth
Circuit law, the third requirement is satisfied whenever a district court
reaches a “patently erroneous result.” Compare Petition for Writ of
Mandamus at 10-11, Apple, 979 F.3d 1332 (No. 20-135), Dkt.2-1 (citing
Volkswagen, 545 F.3d at 310-12, 318-19); with Volkswagen, 545 F.3d at
310-12 (setting out the Cheney requirements), and id. at 318-19
(separately analyzing the third requirement after finding the others
28
satisfied). The respondent addressed only the “clear and indisputable
right” requirement. Non-Confidential Response to Petition for Writ of
Mandamus at 6, Apple, 979 F.3d 1332 (No. 20-135), Dkt.34. So the Court
had no occasion to—and thus presumably did not—adopt a categorical
rule eliminating the third requirement.
2. More fundamentally, Core’s reading would require this Court to
conclude that in a single sentence applying Fifth Circuit law, the Apple
Court created a conflict with the Supreme Court’s Cheney decision, this
Circuit’s precedent, and its sister circuits—including the Fifth. The Court
did no such thing.
Start with the cases Apple cited. 979 F.3d at 1336-37 (citing In re
McGraw-Hill Glob. Educ. Holdings, 909 F.3d 48, 56 (3d Cir. 2018); and
In re TS Tech USA Corp., 551 F.3d 1315, 1322 (Fed. Cir. 2008)). Neither
supports Core’s categorical rule. Although McGraw-Hill explains why
transfer cases categorically satisfy other requirements, the “third factor”
that it described as “collaps[ing] into” the merits was the Third Circuit’s
“irreparable injury” requirement—not this Court’s (and Cheney’s) third
requirement. 909 F.3d at 56 (attribution omitted). The Third Circuit went
on to note, consistent with Cheney’s third requirement, that it “retain[s]
discretion to deny the writ even in the face of [clear and indisputable]
errors.” Id. at 57.
Likewise, this Court’s TS Tech decision recognized that “the ‘no other
means’ requirement” is satisfied in §1404(a) cases, but it went on to apply
29
Cheney’s separate discretionary requirement. See 551 F.3d at 1322-23
(finding “that the district court clearly abused its discretion” and then
separately “determin[ing] that mandamus relief is appropriate in this
case”); accord In re Nintendo Co., 589 F.3d 1194, 1201 (Fed. Cir. 2009)
(same); In re Genentech, Inc., 566 F.3d 1338, 1348 (Fed. Cir. 2009) (same).
The Apple panel did not purport to overrule these cases. Nor could it
have. Smith ex rel. Hicks v. McDonough, 112 F.4th 1357, 1364 (Fed. Cir.
2024).
What’s more, on Core’s reading, Apple would clash with the very
regional circuit whose law it was applying. Apple applied Fifth Circuit
law as articulated in Volkswagen. See Apple, 979 F.3d at 1336. That en
banc decision leaves no doubt that Cheney’s third requirement means
what it says in §1404(a) cases as in any others. Volkswagen, 545 F.3d at
319 (separately analyzing the third requirement and finding it satisfied).
In sum, Fifth and Federal Circuit law alike comply with Cheney:
“[E]ven if ” a court finds the first two requirements satisfied, it must still
consider whether “the writ is appropriate under the circumstances.” 542
U.S. at 381. This Court would be well within its discretion to deny Core’s
petition for skipping this requirement.
B. Mandamus is inappropriate in light of the amended and
third-party complaints filed after briefing concluded.
Core’s petition seeks nothing more than case-specific error correction.
Core presents no issue with any “importance beyond this case.” Cf.
30
Volkswagen, 545 F.3d at 319. Nor do the issues have any practical
importance in this case. Even if Core could establish error in the district
court’s decision based on the original complaint, the amended and third-
party complaints made any error harmless. Both Malikie’s amended
allegations and Core’s own third-party allegations refute Core’s central
contention in support of transfer: that this case’s connection to the
Eastern District rests in the past. It is now beyond dispute that this case
involves ongoing activity in the Eastern District, undermining Core’s
arguments on every contested factor.
As discussed, Malikie’s amended complaint made the original
complaint on which Core’s argument rests a “dead letter[]” that “no
longer perform[s] any function in [this] case[].” Samsung, 2 F.4th at 1376
(cleaned up); supra pp.16-18. That now-operative complaint—plus Core’s
third-party complaint stemming from it—puts Core’s case for transfer to
rest. This Court should not deploy “one of the most potent weapons in the
judicial arsenal” to second-guess the district court’s evaluation of a set of
facts that no longer exists. Cheney, 542 U.S. at 380 (cleaned up).
Start with the amended complaint. Filed after the transfer briefing
was completed, the amended complaint alleges that Core infringes two of
Malikie’s patents—one that has been in the case all along, and one newly
asserted—in connection with Core’s HPC operations at its Denton facility
in the Eastern District. SAppx86-88(¶¶161-64, 168-72). Core expanded
its Denton data center to provide infringing HPC services there.
31
SAppx47-55(¶¶48, 54-56, 60). The expansion will result in “one of the
largest GPU supercomputers in North America.” SAppx47-48(¶48). As a
result, Malikie’s infringement claims arise in part from Core’s ongoing
HPC activities in Denton. SAppx77(¶126), SAppx79(¶132).
Core’s third-party complaint deepens this case’s Eastern District
roots. That complaint brings CoreWeave, the customer occupying Core’s
Denton data center, into this case. SAppx93-94(¶¶1-2), SAppx100-
102(¶¶23-31). Core’s third-party complaint acknowledges that Malikie
“allege[s] infringement by [Core] based on [Core’s] tenant CoreWeave
performing high-performance computing (‘HPC’) in one or more of
[Core’s] data centers.” SAppx93-94(¶1); see also SAppx96-97(¶¶11-12)
(acknowledging infringement allegations based on hosting and use of
NVIDIA GPUs and DPUs). Core contends that if it is held liable “by
virtue of the HPC activities of CoreWeave,” then Core “is entitled to
indemnification from CoreWeave through one or more agreements” in
which Core “grant[ed] CoreWeave a license to use [Core’s] data center(s)
for CoreWeave’s HPC operations.” SAppx94(¶2). One of those data
centers is, of course, the Denton data center identified in Malikie’s
amended complaint, where, according to Core, “CoreWeave does
business” and “has installed HPC devices and equipment, including
NVIDIA GPUs for HPC operations.” SAppx96(¶8), SAppx98(¶16); see
also SAppx98(¶18) (alleging that “CoreWeave owns HPC devices
32
including the accused NVIDIA GPUs and DPUs that are hosted at
[Core’s] data centers”).
These developments underscore that the district court was right to
deny transfer and thus that this Court should deny mandamus. But at
the very least, they narrow the scope of any appropriate relief. There is
no reason to direct transfer without first considering how the amended
and third-party complaints—both of which came after briefing wrapped
up—affect the transfer analysis. Nor is there any reason for this Court to
do so in the first instance, let alone in a mandamus posture and without
the benefit of discovery. So even if Core could satisfy the mandamus
requirements, the most it should get is vacatur and a remand for the
district court to reconsider in light of the now-operative pleadings.
33
CONCLUSION
This Court should deny the petition.
Respectfully, submitted,
/s/ Khue V. Hoang
Brian C. Baran Khue V. Hoang
Philip J. Eklem REICHMAN JORGENSEN
REICHMAN JORGENSEN LEHMAN & FELDBERG LLP
LEHMAN & FELDBERG LLP 650 Fifth Avenue, Suite 2320
1909 K St. NW, Suite 800 New York, NY 10019
Washington, DC 20006 (212) 381-1965
(202) 894-7310 [email protected]
[email protected]
Matthew G. Berkowitz
REICHMAN JORGENSEN
LEHMAN & FELDBERG LLP
100 Marine Parkway, Suite 300
Redwood Shores, CA 94065
(650) 623-1401
[email protected]
Counsel for Respondents
Malikie Innovations Ltd. and Key Patent Innovations Ltd.
May 20, 2026
34
FORM 19. Certificate of Compliance with Type-Volume Limitations Form 19
July 2020
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATIONS
Case Number: 2026-140
Short Case Caption: In re Core Scientific, Inc.
Instructions: When computing a word, line, or page count, you may exclude any
items listed as exempted under Fed. R. App. P. 5(c), Fed. R. App. P. 21(d), Fed. R.
App. P. 27(d)(2), Fed. R. App. P. 32(f), or Fed. Cir. R. 32(b)(2).
The foregoing filing complies with the relevant type-volume limitation of the
Federal Rules of Appellate Procedure and Federal Circuit Rules because it meets
one of the following:
✔ the filing has been prepared using a proportionally-spaced typeface
and includes __________
7,762 words.
the filing has been prepared using a monospaced typeface and includes
__________ lines of text.
the filing contains __________ pages / __________ words / __________
lines of text, which does not exceed the maximum authorized by this
court’s order (ECF No. __________).
05/20/2026
Date: _________________ Signature: /s/ Khue V. Hoang
Name: Khue V. Hoang