NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

In re: WENGER S.A.,

Petitioner

______________________

2022-158

______________________

On Petition for Writ of Mandamus to the United States 

District Court for the Western District of Texas in No. 6:21-

cv-00453-ADA-DTG, Judge Alan D. Albright.

______________________

ON PETITION

______________________

Before DYK, REYNA, and TARANTO, Circuit Judges.

REYNA, Circuit Judge.

O R D E R

Wenger S.A. petitions for a writ of mandamus to direct 

the United States District Court for the Western District of 

Texas to transfer this patent infringement suit to the 

United States District Court for the Southern District of 

Florida. Swissdigital USA Co., Ltd. opposes. 

Swissdigital owns patents covering bags for convenient 

charging of personal devices and a sheath incorporated into 

a bag that performs the same task. In September 2021, 

Swissdigital filed this action in the Western District of 

Texas against Wenger for offering to sell, selling, and 

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2 IN RE: WENGER S.A.

inducing others to offer to sell and sell allegedly infringing 

USB-charging backpacks with the “SWISSGEAR” trademark through Wenger’s website. In March 2022, Wenger, 

a company based in Switzerland, moved under 

28 U.S.C. § 1404(a) to transfer to the Southern District of 

Florida, the headquarters location of a non-party that 

Wenger contends designs, coordinates manufacture of, and 

sells the accused products. Appx068. 

The district court, adopting the recommendation of the 

magistrate judge, denied Wenger’s motion. The court concluded that Wenger had failed to show the Southern District of Florida is clearly more convenient, noting, among 

other things, Wenger had not identified employees of the 

Florida non-party who would testify, and “[t]he parties do 

not have a specific presence in” the transferee forum.

Appx005–06, 012. The court further found that the timing 

of the transfer request weighed against transfer, noting 

that during the time between the filing of the complaint 

and the motion, the court and the parties “ha[d] expended 

considerable resources on this case,” and hence transfer 

“would result in a waste of these resources and the likely 

need to repeat many of the steps already completed in this 

forum.” Appx010. After the district court overruled its objections, Wenger filed this petition. We have jurisdiction 

pursuant to 28 U.S.C. §§ 1651 and 1295(a)(1).

Applying the law of the regional circuit, In re TS Tech 

USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008), here, the 

United States Court of Appeals for the Fifth Circuit, our 

task on mandamus is limited to determining whether the 

denial of transfer was such a “‘clear’ abuse of discretion” 

that refusing transfer would produce a “patently erroneous 

result,” id. (citation omitted); see also In re Apple Inc., 979 

F.3d 1332, 1336 (Fed. Cir. 2020); In re Nitro Fluids L.L.C., 

978 F.3d 1308, 1310–11 (Fed. Cir. 2020). Under Fifth Circuit law, we must deny mandamus unless it is clear “that 

the facts and circumstances are without any basis for a 

judgment of discretion.” In re Volkswagen of Am, Inc., 545 

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IN RE: WENGER S.A. 3

F.3d 304, 312 n.7 (5th Cir. 2008) (en banc) (citation omitted). Wenger has not met that standard.

Wenger has not made a compelling case for transfer to 

the Southern District of Florida here, particularly in light 

of the fact that no party is located there and the finding of 

delay. Wenger did not challenge the finding of delay before 

the district court. And we cannot say that the district court 

was plainly incorrect under the circumstances in rejecting 

Wenger’s argument that the transferee venue would be 

more convenient for prospective witnesses and evidence. Swissdigital has represented that it will rely only 

on sources of proof in Wenger’s possession, Appx005, and 

has said it will rely only on expert testimony regarding “the 

characteristics and features relevant to [the accused products’] infringement,” Appx059, while Wenger’s motion to 

transfer failed to identify specific potential witnesses or evidence in the transferee venue on which it would rely. See 

Defense Distributed v. Bruck, 30 F.4th 414, 434 (5th Cir. 

2022) (noting that conclusory assertions that sources of 

proof or non-party witnesses exist in a transferee venue 

lacks the “necessary proof” required to show “the existence 

of relevant sources of proof”). Under these specific circumstances, we cannot say that the district court’s denial of 

transfer produced a patently erroneous result.

Accordingly, 

 IT IS ORDERED THAT: 

The petition is denied.

September 23, 2022

 Date

 FOR THE COURT

/s/ Peter R. Marksteiner

 Peter R. Marksteiner

 Clerk of Court

 

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