in re apple bostwick whenever you're ready thank you your honor please the court this case can be resolved based on just two critical errors each of which is clear from the face of the district court's opinion st the district courts reliance on its progress in the case by the time it issued its transfer opinion and in particular the fact that it had set a trial date that was the basis for the only factors the court weighed against transfer the practical problems factor and court congestion and it is a clear abuse of discretion to rely on the perceived ability to more quickly schedule a trial as this court just recently held in adobe or to rely on things that happened after the case was filed and indeed after the transfer decision was announced as this court held just last week in the hewlett packard  but for a series of clear legal errors the court would have treated the critical cost to willing witnesses factor as pro transfer instead of neutral the court agreed that apple's witnesses favored transfer and it recognize that you know lots witnesses are also in california it discounted their convenience because they are willing to travel even though this factor presumes willingness and still requires a consideration of convenience further minimize the convenience of all party witnesses doubling down on a flawed legal approach that this court had just reminded this district court in apple's s t c u n m case was a quote discordant proposition counsel  what's known as the pfizer factors these are set out in the vote so i can decisions and what it says is it can be for example a failure to consider the relevant factors or consideration of factors it also can be a clear abuse of discretion so we know that a clear abuse of discretion can be something other than simply failing to consider all the factors beyond that the th circuit has not provided extensive guidance but what it said in the horseshoe case is that the court can only apply the pfizer standard by reviewing carefully the circumstances presented to and the decision making process used by the district court and so this court can look for example a clear legal error a clear miss application of law to fact or a clear misapprehension of fact which is why i focused on these two errors that are both clear simply by looking at the district court's opinion so multiple clear legal errors as well as clear as separate mentions of the fact what i'm saying is that these two clear legal errors that i'm focused on are sufficient to grant mandamus because but for those errors one could one would have to conclude that the northern district of california was the clearly more convenient for him because again the only factors weighing against transfer depending on this st legal error of considering the setting of a trial date and the progress in the case after the transfer motion were you said the only thing that weighed against transfer but what did the district court find weighed in favor transfer the district court found that the access to sources of proof factor weighed in favor of transfer it did so slightly because we believe it made a clear error in the analysis of the location of documents if everything else were neutral and there is one factor that favors is neutral in one favor or a slightly should it be transferred the question is should an appellate court step in and mandamus a case in those circumstances certainly i think it could because the analysis involved a clear of discretion but the court doesn't have to go that far because there are other clear abuses of discretion that were dispositive and that's why focus on the cost to willing witnesses factor which this court has has recognized is the most important factor in  the district court treated that as a neutral here but it did so only through this series of clear legal errors but for those the cost of willing witnesses factor would have had to weigh in favor of transfer and so if  simply look at that then you have one dollar factor weighing slightly in favor of transfer one critical factor weighing in favor of transfer and nothing weighing against and that is certainly a case for mandamus and this court has done so several times the district court care in the cost of attendance or willing witnesses certainly i want to be clear we have disputes here about which witnesses might be relevant but even without getting into those disputes the district court's legal errors are enough to show a clear abuse of discretion so as i said the district court recognized that the location of apple's witnesses favored transfer it recognized a number of you walk witnesses and fortress witnesses in california including in the northern district discounted those witnesses st by saying that you know walk had witnesses in or near both forums who were willing to travel but this factor presumes that a witness is willing to appear the question remains the cost to them of doing so and those costs must be considered even for plaintiff's witnesses the district court then further discounted what was at that time a slight pro transfer weighting by saying that all party witnesses apples and you know locks should be given little weight that was just one week after this court called it a discordant proposition to take this approach the district court stood by it there is no support for that proposition and the th circuit decision and folks back into this court's decision engine attack and others make clear that it is improper at that point you have a district court agreeing that the party witnesses weighed in favor of transfer but saying it was going to that little weight it then committed the rd error to make this factor neutral and that was relying on prospective witnesses who are outside of both forms the inventors and the prosecuting attorney who are based in new york as well as the only possible uniloc witnesses that the district court could have been referring to when it said there were such witnesses in or near the western district of texas that as you know want to administrative employees in its tyler texas office in the eastern district relying on all of these witnesses was contrary to this court's repeated holdings most recently last week in the hewlett packard decision that such witnesses are not relevant to the analysis because they're going to have to travel and incur so your honor the th circuit one hundred mile rule applies when the distance between an existing venue for trial and a proposed venue is more than a one hundred miles it's a recognition that for example the difference between the austin division and the waco division might not be so significant but when your two potential venue's are very far apart and you have witnesses who have to travel to one forum but not to the other their convenience matters a great deal  circuit has not said that directly what i was quoting in there to question of the rule is from the folks like in one case at page two of four and what this court has said many times in applying the th circuit flaw is that when witnesses are going to have to travel for the travel certainly for me to travel from d c to new york which is more than a one hundred miles away costs a lot less than for me to travel from d c to california so wouldn't that cost be something relevant to the the district court to conclude that it would cost more for witnesses to travel from new york to california than it would from new york the district court did not make that determination  i think it certainly would have without any evidence in the record that that is we're talking about the difference between travel from new york to either texas waco texas or to northern california certainly that trip regardless is going to involve plane travel hotel stays multiple days away from work and family which is exactly what the th circuit one hundred miles focuses on the fact that the plane ride each way whether you've got witnesses inside the form or outside the forum and in fact in this court's st mandamus decision to enter a ts tech case the court found that the district court erred by failing to apply the one hundred mile to witnesses located in canada michigan and other parts of ohio that were different than where the court was going to transfer the case to the southern district of ohio which was the transferee form there's no precedent holds otherwise in this court the toilet a case the council mentioned and the subsequent cases are about when there's no connection to the venue that the plan to file when there's no witnesses no presents with regard to rd party witnesses that this was a significant fact that weighed against transfer when we look back at volkswagen and now we have june and which is the presidential opinion our court which that it's a slight inconvenience with the distance is different they talked about a whole bunch of that one might be the time in travel and as you know t s that the volkswagen case talked about thirty minutes versus six hours but they also talked about having to have an overnight stay and be away for more and so forth so in this  sure on i would say it comes from the volkswagen case itself where the distance and the convenience is measured the commissar in the convenience to the witness is proportional to the to the distance to be traveled and so that  internet said that they specifically and didn't get me specifically held that witnesses coming from europe and the east coast would only be slightly more inconvenienced by having to travel to california than  which seems kind of a close parallel to what we're looking at here right i think it's a little difference in the sense that when you're most of the witnesses as i recall jeannette that were relevant were from were from zero and that's like this court's h p decision where the witnesses from last week where the witnesses will become information and it when you get to that point your now comparing two things that are relatively close together a fly from europe to california versus europe to coming from we'll take a look at that that's correct it was all three of those locations but we don't have anything approaching an international keast in this case and we need to remember in the court under the th circuit are presumed to that the court are presumed to have not whose convenience is not as paramount as rd parties who aren't interested in the dispute and these were the   rd parties and they are further from texas than california but on like toyota and these other decisions the district court decision doesn't hinge on that there's significant proof that apple didn't mention either the smorgon or really in front of the district court of apples and other rd parties that are in the western district of texas and so apple one of their contract manufacturer makes the accused one of the accused products in austin we found out recently that even though apple has characterize that as just a manufacture just tightening the screws that that company flextronics actually loads queue software in this case apple itself has technical witnesses who deal with delivering the app updates which is covered by allegations in our infringement contentions and judge all  was i mean you have to we have to remember where we're at in the proceedings at this point judge albright has assertions from apple that flextronics isn't relevant and has statements and evidence from from is and the record is borne out that flextronics may be a witness and trial because apple has not produced a lot of the flextronics related material so the predicate of that assumption hasn't borne out to be true the time of the hearing to the time of his decision the markham and ruling the clean construction the discovery orders except are you defending the use of that and the reliance of that to bolster the district court's view that he should not transfer the case i do believe on mandamus review it is not clear warranted mandamus for a couple of reasons under the e m c case even though the situation is as the suit existed that decision says things that are reasonably foreseeable down the line the court can consider and the court's trial date and markman schedule certainly are things that were known when this case was filed and were facts or at least reasonably forseeable facts at that time but importantly for mandamus even if there is an error the district court's decision unlike h p and adobe does not hinge on either its trial date or the marksman work there's a significant connection to this district there's also a connection to california which the judge weighed and found it neutral but apple's burden is to show that it's clearly more convenient at the district court and its burden appears to show that there is a clear abuse of discretion warranted mandamus and on the credit in the marksman work apple didn't raise that in its petition didn't argue in front of the district court judge with regard between the hearing and the actual issuance of the opinion in which would be why and what it's been undertaken and have been doing that interim five or six week period in my economy and what works happened in these other northern district of california cases that the judge found were not sufficiently related versus our case but it's something that just procedurally is not in front of the court right now and if this is an issue i think the one it's not a big enough issue to warrant mandamus where there is a clear abuse of discretion in light of all the other evidence in the record about apple's presence in austin but also there's just front of the district court or properly on appeal the resolution wouldn't be to grant the petition it would be to either deny the petition and let apple raise this through the normal course after i know you're alternately issued his order five weeks or six weeks down the road but he he hadn't told anybody this is the date i'm going to issue right so what if his order had not issued six weeks up what if it had been eight or ten weeks is there some timeframe you can give maybe you think in the absence of a written order and the case preceding apple would have been within that you think are correct right to proceed with filing a mandate sure i think apple had a number of other options as a general matter i would think that apple could have waited at least four to six months given the status of the case we  started discovery the case wasn't nearing trial there wasn't any work we were doing and in the western district case that wouldn't carry over with the case if it got transferred so we weren't on the verge of of any real  on doable prejudice but apple also had other options i mean they moved to stay in front of the district court he did not have that they could have brought that titian and asked this court to stay the district court proceedings while the trans issued they didn't do that they could have filed a petition appear as parties have done in the past request in the court to issue a formal opinion and stand proceedings in the interim that i think was the nintendo one of the nintendo as they had other other options where the regular process could have been followed and the petition that apple's ultimately filed on the transfer issue would have joined issue is what the court actually held in the separate times so a lot of your argument has been directed to the fact that you believe by jumping the gun which was a litigation choice on apple's part you know and they've got to live and die by it by jumping the gun and prior to the ruling they have waived anything not raised in their petition how are you prejudice if we conclude otherwise if we go ahead and consider those arguments that we're not in the position pick the points of error and we respond and say that was an error or it's not clear enough air to warrant mandamus or the wife it's not our position in the very st brief to say here's why the judge is right when apple hasn't addressed the actual  order and so that's the process prejudice that we initially would have faced and apple opposed are sir replied on the basis that on the basis that it would be improper and the court has ruled on on that motion and so i'm not aware if that's a live issue or not and the other prejudices is in the sir replied we have a limited amount of briefing to address all of this and then there's the basic overall process point that we're here on a request for extraordinary relief that's just you know a clear abuse of discretion counsel let's go back for a nd you had wanted to finish a question about remedy i believe where you were going and you can tell me if i'm wrong  is you were talking about in light of adobe in h p both of which were issued after the district court decision you were saying that even if we perceive there to be errors in his analysis the proper remedy you said wouldn't be to actually border transfer it would be and then you got interrupted can you finish what you were trying to say what would the proper remedy be under your in your view would it be to send it back for him to consider the transfer in light of  oh that's the most i think the most generous remedy that would be available i mean in both i believe dropbox and adobe this issue of the trial date as well in h p the issue of credit in the works the court of done it actually been raised in our view is that those issues were not raised but all of that aside i think the proper remedy assuming this is an error assuming it's enough of an error that could affect the actual outcome of the transfer decision the remedy is what happened and in this court's dropbox opinion which is to send it back to the district court to actually make these findings and weigh these factors in the st instance which is the ultimate latest ultimate discretionary consider another motion to transfer i heard the noise unless the court has an offer of a question like oh because i don't have a hard time hearing the bell did the bell actually go off yes your honor well thank you for hearing that mr hurt thank you very much  let's hear from the software for her remaining time thank you your honor i want to make a few quick points to correct some statements by my opposing counsel but then i do want to make sure that we get back to the big picture here  the macpro computer which is one of the many accused products and then is it also correct that apple has an eight thousand person plant in the western district of texas which has engineers and other  that some of those folks might be relevant the court doesn't need to look behind that because even accepting that right the district court credit that counsel you cited in your brief you really focused hard and you cited a lot of texas cases that we've had in front of us and you said that judge albright should have transferred this like so many other judges have done in the past or like we boarded other judges to do but most of those other cases that you were referring to were ea texas cases and i guess for me a really big difference seems to be that apple is if not the largest one of the largest employers in the western district of texas you know doesn't that suggest some pretty strong local interest in having litigation decided locally it does not you're on because the local interest is to this case and i want to be clear that there are but also the council but the accused product is made in the district so i mean if if you interest wrong what is the local interest the local interest is about the accused technology to be clear the district court here found the bit about the technology itself it's not it's not about the actual interests of the community or the people within the districts were created the technology you're telling me that when a district court analyzes the local interests that will be impacted by it take the case taking place in texas versus california it's only the