N OTE : This order is nonprecedential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 D YK , R EYNA , and T ARANTO , Circuit Judges

. R EYNA , Circuit J udge

. 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 Distri ct of Florida. Swis s digital USA Co., Ltd. opposes.
Swissdigital owns patents covering bag s 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 Case: 22-158 Document: 12 Page: 1 Filed: 09/23/2022IN RE : WENGER S

. A

. 2

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 pr oducts. 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 thi ngs, Wenger had not identif ied employee s of the Florida non

- party w ho would testify

, and “[t]he parties do not have a specific presence in” the transferee forum

. Appx 005

– 06, 012 . The court further found that the timing of the transfer request weighed aga inst 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 wh ether the denial of transfer was such a “‘clear’ abuse of discretion” that refusing transfer would produce a “patently erroneous result

, ” i d . (citation omitted) ; see also In re Apple Inc ., 979 F.3d 1332, 133 6 (Fed. Cir. 2020) ; In re Nitro Fluids L.L.C.

, 97 8 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 Case: 22-158 Document: 12 Page: 2 Filed: 09/23/2022IN RE : WENGER S

. A

. 3

F.3d 304, 31 2 n.7 (5 th 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 prosp ective 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 totransfer 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

, I T I S O RDERED T HAT : The petition is denied.

September 23 , 2022 Da te F OR THE C OURT

/s/ Peter R. Marksteiner Peter R. Marksteiner Clerk of Court Case: 22-158 Document: 12 Page: 3 Filed: 09/23/2022