United States Court of Appeals for 

the Federal Circuit 

__________________________ 

IN RE MICROSOFT CORPORATION, 

Petitioner. 

__________________________ 

Miscellaneous Docket No. 944 

__________________________ 

On Petition for Writ of Mandamus to the United States 

District Court for the Eastern District of Texas in case no. 

09-CV-0366, Judge Leonard Davis. 

____________________________________________ 

NONPRECEDENTIAL ORDER ISSUED: November 8, 2010 

PRECEDENTIAL ORDER ISSUED: January 5, 2011 

____________________________________________ 

ON PETITION FOR WRIT OF MANDAMUS

____________________________________________ 

 DAVID J. LENDER, Weil, Gotshal & Manges LLP, of New 

York, New York, for petitioner. With him on the petition 

were PAUL E. TORCHIA and STEVEN KALOGERAS; AMBER H.

ROVNER, of Houston, Texas; and STACY QUAN, Microsoft 

Corporation, of Redmond, Washington. 

CHRIS P. PERQUE, Gardere Wynne Sewell LLP, of Houston, Texas, for respondent Allvoice Developments US, LLC. 

With him on the response was STACY R. OBENHAUS, of Dallas, Texas. 
IN RE MICROSOFT CORP 2

Before NEWMAN, FRIEDMAN, and LOURIE, Circuit Judges. 

PER CURIAM. 

O R D E R 

This is a petition for a writ of mandamus from an order 

denying a motion to transfer pursuant to 28 U.S.C. § 

1404(a). That section authorizes a district court of proper 

jurisdiction to nevertheless transfer a case “for the convenience of parties and witnesses, in the interest of justice.” 

Because the record plainly shows that the United States 

District Court for the Western District of Washington is 

clearly more convenient and fair for trial and that the determination of the United States District Court for the 

Eastern District of Texas denying transfer was reached by a 

clear abuse of discretion, we grant the petition and direct 

transfer. 

I. 

This case arises out of a patent infringement suit 

against the petitioner-defendant, Microsoft Corporation, 

brought by the respondent-plaintiff, Allvoice Develop-ments 

U.S., LLC. Specifically, Allvoice’s complaint asserts that 

speech recognition functionality in Microsoft’s XP and Vista 

operating systems infringe U.S. Patent No. 5,799,273 entitled “Automated Proofreading Using Interface Linking 

Recognized Words to Their Audio Data While Text is Being 

Changed.” 

Allvoice brought this suit in the Eastern District of 

Texas. Allvoice is operated from the United Kingdom by the 

patent’s co-inventor and company’s managing member, John 

Mitchell. Although Allvoice now maintains an office in 

Tyler, Texas, it is not disputed that the entity does not 

employ individuals in those offices or anywhere in the 
3 IN RE MICROSOFT CORP

United States. Allvoice’s website directs requests and 

inquiries to its Texas office, and Mitchell then answers those 

requests and inquiries from the U.K. 

Microsoft moved to transfer the case to the Western District of Washington, where it maintains its corporate headquarters and where a substantial portion of its employees 

and its operations are located. Microsoft’s motion indicated 

that all of its witnesses relating to sales, marketing and 

product direction and prior art speech recognition technology 

reside in the Western District of Washington. Microsoft also 

indicated that all of its relevant documents and evidence 

relating to the marketing, development, and design of the 

accused products are located within the Western District of 

Washington. 

The Eastern District of Texas denied that motion. The 

district court explained that both districts had a local interest in adjudicating this matter because Allvoice maintained 

offices in the Eastern District of Texas and was incorporated 

under the laws of Texas. With regard to the witnesses, the 

district court weighed the factor slightly against transfer 

because Allvoice had identified potential non-party witnesses not in the Eastern District of Texas but rather in 

New York, Massachusetts, and Florida who, according to the 

court, would find Texas more convenient for trial. Finally, 

with regard to the sources of proof, the district court 

weighed this factor only slightly in favor of transfer because 

Allvoice had said its documents were maintained in the 

Eastern District of Texas. 

II. 

A motion to transfer under § 1404(a) calls upon the trial 

court to weigh a number of case-specific factors relating to 

the convenience of the parties and witnesses, and the proper 

administration of justice, based on the individualized facts 

on record. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 
IN RE MICROSOFT CORP 4

29 (1988). Although a trial court has great discretion in 

these matters, we have applied Fifth Circuit law in cases 

arising from district courts in that circuit to hold that mandamus may issue when the trial court’s application of those 

factors amounts to a clear abuse of discretion. See, e.g., In re 

Nintendo Co., 589 F.3d 1194 (Fed. Cir. 2009); In re Hoffmann-La Roche Inc., 587 F.3d 1333 (Fed. Cir. 2009); In re 

Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009); In re TS 

Tech USA Corp., 551 F.3d 1315 (Fed. Cir. 2008). 

Thus, in Genentech, this court granted mandamus when 

the trial court relied on its central proximity to the witnesses and parties rather than a meaningful application of 

the factors. 566 F.3d at 1344. We determined that the 

factors should conform to the fact that a significant number 

of witnesses and parties were actually located within the 

transferee venue and could be deposed and testify without 

significant travel or expense, while no witness or party was 

located within the plaintiff’s chosen forum. Id. at 1345. We 

held that the trial court’s application of the factors was 

patently erroneous, in part because a denial of transfer 

would require every witness to expend significant time and 

cost in order to attend trial. 

This case is in many respects analogous to Genentech. 

As in that case, there is a stark contrast in convenience and 

fairness with regard to the identified witnesses. All individuals identified by Microsoft as having material information relating to the patents reside within 100 miles of the 

Western District of Washington. Thus, these witnesses 

would not have to undergo considerable cost and expense to 

testify and would also be subject to that district’s subpoena 

powers. Meanwhile, Allvoice has identified fourteen witnesses, twelve who reside outside Texas and two who are 

local Eastern Texas businessmen who bought or used the 

accused Microsoft products and are not repre-sented as 

having any knowledge of the patent or the issues of the suit. 
5 IN RE MICROSOFT CORP

Thus, maintaining trial in the Eastern District of Texas 

would similarly require witnesses to undergo the cost, time, 

and expense of travel to attend trial, which would be significantly minimized if this case were transferred to the Western District of Washington. 

Allvoice nevertheless urges that this case is distinguishable from Genentech. Allvoice contends that unlike the 

plaintiff in that case, it has an established presence in the 

Eastern District of Texas. Allvoice’s argument, however, 

rests on a fallacious assumption: that this court must honor 

connections to a preferred forum made in anticipation of 

litigation and for the likely purpose of making that forum 

appear convenient. 

The Supreme Court has long urged courts to ensure that 

the purposes of jurisdictional and venue laws are not frustrated by a party’s attempt at manipulation. Thus, in Miller 

& Lux, Inc. v. East Side Canal & Irrigation Co., 211 U.S. 

293 (1908), the Supreme Court held that a corporation could 

not create federal diversity jurisdiction by merely assigning 

its claim to an otherwise fictitious subsidiary for just that 

purpose. See also Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 

327 (1895) (same); see also Morris v. Gilmer, 129 U.S. 315, 

328 (1889) (“Upon the evidence in this record, we cannot 

resist the conviction that the plaintiff had no purpose to 

acquire a domicile or settled home in Tennessee and that his 

sole object in removing to that state was to place himself in a 

situation to invoke the jurisdiction of the circuit court of the 

United States.”). 

More recently, in Hertz Corp. v. Friend, 130 S.Ct. 1181 

(2010) the Court stated in the context of an inquiry into a 

corporation’s principal place of business for diversity jurisdiction purposes: 

If the record reveals attempts at manipulation ─ for example, that the alleged, ‘nerve 
IN RE MICROSOFT CORP 6

center’ is nothing more than a mail drop box, 

a bare office with a computer, or the location 

of an annual executive retreat ─ the court 

should instead take as the ‘nerve center’ the 

place of actual direction, control, and coordination, in the absence of such manipulation. 

Id. at 1195. 

This court has diligently followed these principles in 

matters of transfer. Thus, in Hoffmann-La Roche, we noted 

that in anticipation of litigation, the plaintiff’s counsel in 

California transferred 75,000 pages of pertinent documents 

to the offices of its litigation counsel in Texas and then 

asserted that the location of those documents was a factor 

that favored not transferring the case from the Eastern 

District of Texas. 587 F.3d at 1337. We held that the assertion that those documents were “Texas” documents was a 

fiction that appeared to be created to manipulate the propriety of venue and that it was entitled to no weight in the 

court’s venue analysis. Id. 

Allvoice contends that its connections to the Eastern 

District of Texas are distinguishable from Hoffmann-La 

Roche. Allvoice explains that its principal place of business 

is in the Eastern District of Texas, which is where its documents are maintained rather than in its counsel’s offices. 

This argument was accepted by the trial court without 

scrutiny. 

But we recently rejected such an argument in In re 

Zimmer Holdings, Inc., 609 F.3d 1378 (Fed. Cir. 2010). 

There, we held that the transfer of documents to a company’s offices in anticipation of litigation rather than to 

litigation counsel was a distinction without a difference for 

purposes of a § 1404(a) analysis. Id. at 1381. We further 

explained that, similar to Allvoice’s offices here, the offices 

in Zimmer staffed no employees, were recent, ephemeral, 
7 IN RE MICROSOFT CORP

and a construct for litigation and appeared to exist for no 

other purpose than to manipulate venue. Id.

The only added wrinkle is that Allvoice took the extra 

step of incorporating under the laws of Texas sixteen days 

before filing suit. But that effort is no more meaningful, and 

no less in anticipation of litigation, than the others we reject. 

In Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 

518 (1947), the Supreme Court explained that “[u]nder 

modern conditions corporations often obtain their charter 

from states where they no more than maintain an agent to 

comply with local requirements, while every other activity is 

conducted far from the chartering state.” Id. at 527-28. The 

Court further explained that the “[p]lace of corporate domicile in such circumstances might be entitled to little consideration” under the doctrine of forum non conveniens, “which 

resists formalization and looks to the realities that make for 

doing justice.” Id. at 528. 

Here, the realities make clear that the Western District 

of Washington is comparatively the only convenient and fair 

venue in which to try this case. 

Allvoice presents arguments why mandamus should not 

issue. We have carefully considered these arguments, but 

find them unpersuasive. We note that Allvoice asserts that 

Microsoft’s attempt to also transfer this case to the United 

States District Court for the Southern District of Texas 

should be weighed against mandamus. Because the thrust 

of that motion was to transfer the case to a court that had 

previous experience adjudicating the patent, we cannot say 

that any asserted inconsistency with regard to the convenience of trial in the state of Texas as a whole should preclude 

transfer to a venue that is far more convenient and fair. 

Accordingly, 

IT IS ORDERED THAT: 
IN RE MICROSOFT CORP 8

The petition for a writ of mandamus is granted. The district court shall vacate its order denying Microsoft’s motion 

to transfer and transfer the case to the Western District of 

Washington. 

FOR THE COURT

January 5, 2011 

—————————— 

Date 

/s/ Jan Horbaly 

—————————— 

Jan Horbaly 

Clerk 

cc: David J. Lender, Esq. 

 Chris P. Perque, Esq. 

 Clerk, United States District Court for the Eastern 

District of Texas