Federal Procedure – Venue – Application of Special Venue Provision to Change of Venue in Patent Infringement Action

Petitioner brought a patent infringement action in the northern district of Texas, wherein the alleged infringement occurred and the named defendants resided and had a regular place of business. On motion by the named defendants under 28 U.S.C. §1404(a), authorizing the transfer of certain actions to a district in which the action “might have been brought,” the court ordered transfer to the northern district of Illinois where litigation on the same patent was already in progress between the plaintiff and other alleged infringers. Petitioner’s motion for mandamus to require the Texas district court to set aside this transfer order was denied by the Court of Appeals for the Fifth Circuit. Claiming that the Texas court was without power under section 1404(a) to order the transfer, petitioner moved in the Illinois district court for an order remanding the case to the Texas court, but respondent district judge denied the motion. On application for mandamus to direct respondent to remand the action, held, granted, one judge dissenting. The transfer of an action under section 1404 (a) can be made only to a forum in which statutory venue lies. Since under the applicable special venue provision the action could not have been brought in Illinois by petitioner, the Texas court was without power under section 1404 (a) to order, and the Illinois court was without power to accept, the transfer. Blaski v. Hoffman, (7th Cir. 1958) 260 F. (2d) 317, cert. granted 27 U.S. LAW WEEK 3236 (1959).