On October 10, 2008, the Fifth Circuit, sitting en banc, issued its decision in In re Volkswagen of America Inc.[1]

The case concerns the appropriate standard to apply to a motion to transfer venue. Though Volkswagen is not a patent infringement case - as the name suggests, it concerns automobile product liability - the patent bar in the Eastern District of Texas has closely watched this case because of the perceived difficulty of winning a motion to transfer in the Eastern District.[2]

The Fifth Circuit sided with Volkswagen, holding that denying the motion to transfer was ?an abuse of discretion that clearly exceeds the bounds of judicial discretion.? In arriving at that conclusion, the Fifth Circuit expressed concern that ?the district courts have developed their own [venue transfer] tests, and they have applied these tests with too little regard for consistency of outcomes.? The Fifth Circuit explicitly noted that it was exercising its ?supervisory? powers in granting the writ because ?the issues presented and decided above have an importance beyond this case.?[3]

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