NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

In re: ZTE CORPORATION,

Petitioner

______________________

2022-122

______________________

On Petition for Writ of Mandamus to the United 

States District Court for the Western District of Texas in 

Nos. 6:20-cv-00487-ADA, 6:20-cv-00488-ADA, 6:20-cv00489-ADA, 6:20-cv-00490-ADA, 6:20-cv-00491-ADA, 

6:20-cv-00492-ADA, 6:20-cv-00493-ADA, 6:20-cv-00494-

ADA, 6:20-cv-00495-ADA, 6:20-cv-00496-ADA, and 6:20-

cv-00497-ADA, Judge Alan D. Albright.

______________________

ON PETITION

______________________

Before MOORE, Chief Judge, DYK and PROST, Circuit 

Judges.

MOORE, Chief Judge.

O R D E R

ZTE Corporation (“ZTE”) petitions for a writ of mandamus directing the United States District Court for the 

Western District of Texas to vacate its January 3, 2022 

order denying transfer and to transfer to the United 

States District Court for the Northern District of Texas. 

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2 IN RE: ZTE CORPORATION

WSOU Investments LLC opposes. For the following 

reasons, we deny ZTE’s petition. 

BACKGROUND

WSOU filed these cases in the Western District of 

Texas in June 2020, accusing ZTE and its subsidiaries 

ZTE (USA), Inc. (“ZTA”) and ZTE (TX), Inc. (“ZTX”) 

(collectively, “the ZTE entities”) of patent infringement. 

In October 2020, each defendant filed a motion principally 

seeking to dismiss or transfer under 28 U.S.C. § 1406(a). 

ZTE’s motion included an alternative request to transfer 

under 28 U.S.C. § 1404(a) to the Northern District of 

Texas if the court transferred the claims against ZTA and 

ZTX to that district. Appx363–65.

After WSOU amended its complaints on November 6, 

2020, the ZTE entities filed a second, joint motion to 

dismiss or transfer under § 1406(a) on December 4, 2020. 

That joint motion also included an alternative request to 

transfer to the Northern District of Texas under § 1404(a), 

but the district court issued an order striking the transfer

portion of the motion as untimely on December 11, 2020,

based on a previously issued scheduling order. On December 30, 2020, the ZTE entities moved to stay all other

proceedings pending resolution of venue.

On August 6, 2021, the district court agreed to dismiss only ZTA and ZTX for improper venue. ZTE moved 

for reconsideration, arguing, among other things, that 

judicial economy would benefit from either dismissal of all 

the defendants or transfer because it was highly likely 

that WSOU would refile against ZTA and ZTX in the 

Northern District of Texas or that ZTE would file a declaratory judgment action there. The district court denied 

reconsideration on September 3, 2021, reasoning that “to 

the extent there is a judicial efficiency concern here, that 

concern remains hypothetical.” Appx508. 

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IN RE: ZTE CORPORATION 3

On September 7, 2021, ZTA filed a declaratory judgment action in the Northern District of Texas, challenging 

the same patents asserted in the present actions. On 

September 10, 2021, the Western District of Texas requested supplemental briefing “in light of the new developments which raise[] a judicial economy concern,” noting 

that it was “only interested in briefing regarding transfer 

under [28 U.S.C. §] 1404(a), with an emphasis on judicial 

economy.” Appx510. In its brief, ZTE argued that the 

court should not apply the first-to-file rule and should 

transfer the case to the Northern District of Texas to then

be consolidated with ZTA’s now-pending parallel litigation.

On December 6, 2021, ZTE was informed that its stay 

request would not be granted. On January 3, 2022, the 

district court denied ZTE’s request to transfer to Northern 

Texas. Appx1–2. The district court reasoned that these

actions have been proceeding “at a relatively fast pace,” 

including that claim construction briefing had finished, 

fact discovery had progressed for months, and the district 

court had resolved several discovery disputes. Appx2. It 

noted that the only substantive action in the Northern 

Texas case was briefing of a motion to dismiss or stay also 

concerning the first-to-file issues. The district court thus 

did “not find that transferring these actions to the [Northern District of Texas] would promote the efficient resolution of the disputes between the parties or judicial 

economy” and denied transfer. Id. This petition followed. 

DISCUSSION

A writ of mandamus is a “drastic and extraordinary 

remedy reserved for really extraordinary causes.” Cheney 

v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (internal quotation marks and citation omitted). A petitioner 

must satisfy three requirements: (1) the petitioner must 

“have no other adequate means to attain the relief” desired; (2) the petitioner must show that the “right to 

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4 IN RE: ZTE CORPORATION

issuance of the writ is clear and indisputable”; and (3) the 

petitioner must convince the court that the writ is “appropriate under the circumstances.” Id. at 380–81 (internal 

quotation marks and citations omitted). We cannot 

conclude this standard has been met here.

ZTE argues that the district court should have analyzed and weighed judicial economy considerations, the

availability of sources of proof, the convenience of the 

witnesses, and local interest considerations all in favor of 

transferring to Northern Texas. Of those considerations, 

we find that ZTE clearly raised in the district court only 

judicial economy. We therefore do not consider the other 

factors. See Fresenius USA, Inc. v. Baxter Int’l, Inc., 582 

F.3d 1288, 1296 (Fed. Cir. 2009) (“If a party fails to raise 

an argument before the trial court, or presents only a 

skeletal or undeveloped argument to the trial court, we 

may deem that argument waived on appeal . . . .” (citation 

omitted)).

ZTE’s supplemental transfer briefing did not itself 

raise any argument concerning the sources of proof, 

witnesses, and local interest factors. ZTE also was not 

prevented from raising these arguments; to the contrary, 

the district court informed the parties that it was “interested in briefing regarding transfer under [28 U.S.C. 

§] 1404(a).” Appx510. Although the district court asked 

for the parties to place an emphasis on the issue of judicial economy, the district court did not prohibit, and 

indeed invited, ZTE to present its argument for why this 

case should be transferred under the statute. Rather 

than raise these factors, ZTE elected to focus solely on 

judicial economy.

ZTE contends that it raised these arguments indirectly in a one-line footnote in the brief saying it “incorporates 

its transfer for convenience arguments previously raised”

in its October and December 2020 motions. Appx515 n.4. 

But it has not shown a clear right to have arguments 

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IN RE: ZTE CORPORATION 5

raised in such a manner considered. See generally

SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 

1312, 1320 (Fed. Cir. 2006) (requiring arguments to 

ordinarily be fully developed in the briefs and not in 

footnotes); Graphic Controls Corp. v. Utah Med. Prods.,

Inc., 149 F.3d 1382, 1385 (Fed. Cir. 1998) (finding that an 

argument raised in a footnote which in turn referenced 

the full argument in the appendix was not preserved). 

Even if we considered those prior submissions, ZTE

still has not shown that it had clearly preserved these

arguments. ZTE’s October 2020 motion, which ZTE itself

argued was moot after the amended complaint, Appx117–

19, in fact, stated that these factors had “little bearing” on 

these cases, Appx364. We have also not been asked 

directly to overturn or been shown any clear and indisputable error that would warrant disturbing the court’s 

December 11, 2020 order striking the transfer portion of 

the ZTE entities’ December 2020 venue motion. Under 

these circumstances, ZTE has failed to demonstrate a 

clear right to have considerations other than judicial 

economy weighed in favor of transfer.

In denying ZTE’s transfer request, the district court

considered ZTE’s judicial economy arguments in the 

context of applying the first-to-file rule, which “generally 

favors pursuing only the first-filed action when multiple 

lawsuits involving the same claims are filed in different 

jurisdictions.” Merial Ltd. v. Cipla Ltd., 681 F.3d 1283, 

1299 (Fed. Cir. 2012) (citations omitted); W. Gulf Mar. 

Ass’n v. ILA Deep Sea Loc. 24, 751 F.2d 721, 730 (5th Cir. 

1985). We see no clear and indisputable error in the 

district court following that rule here. Although departure from the rule may be justified based on “considerations of judicial and litigant economy,” Elecs. for Imaging, 

Inc. v. Coyle, 394 F.3d 1341, 1347 (Fed. Cir. 2005) (internal quotation marks and citation omitted), the district 

court here made a reasonable finding that such considerations did not warrant an exception to the rule given the 

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6 IN RE: ZTE CORPORATION

progression of this litigation in Western Texas before the 

second-filed action was commenced. 

ZTE cites to this court’s cases that have held that “[a]

district court’s decision to give undue priority to the 

merits of a case over a party’s transfer motion should not 

be counted against that party in the venue transfer analysis.” In re Apple Inc., 979 F.3d 1332, 1343 (Fed. Cir. 

2020). But that analysis is not directly applicable to 

ZTE’s circumstances, which do not involve a court relying 

on the progress of a case that occurred while a transfer 

motion was pending as the basis for denying that same 

motion. ZTE instead asserts that the court should have 

granted its stay request in December 2020 when it filed 

the motion to dismiss, which would have resulted in none 

of the progress cited by the district court that warranted 

following the first-to-file rule here. But ZTE cites no clear 

legal right, and we are not aware of any, to such a stay

here. See In re ADTRAN, Inc., 840 F. App’x 516, 517 

(Fed. Cir. 2021) (denying mandamus relief to direct stay 

of proceedings because of “no authority establishing a 

clear legal right to a stay of all non-venue-related deadlines under circumstances where the venue-related motion is still in briefing and the Markman hearing is 

months away”). 

ZTE also contends that this court should direct transfer because the Northern District of Texas is the only 

venue in which the related actions can be consolidated. 

But denial of mandamus here does not leave the two 

district courts without means to fulfill the first-to-file 

rule’s objective of trying to avoid inconsistent judgments 

or waste party and judicial resources. The parties informed this court that the Northern District of Texas 

action has been stayed pending the outcome of this petition. And WSOU has a pending motion to dismiss or stay 

that action premised on application of the first-to-file rule. 

Accordingly,

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IN RE: ZTE CORPORATION 7

 IT IS ORDERED THAT: 

The petition is denied.

May 5, 2022

 Date

FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

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