Practitioners in Texas patent courts see orders granting or denying motions to permit alternative service all the time. What we see less often is the Federal Circuit weighing in on a request by an alternatively-served defendant for mandamus relief from such a motion. Here the Federal Circuit affirmed Judge Albright’s decision, providing some useful guidance on what’s permissible and the standard for review (with an Easter egg on mandamus standards).
Judge Mazzant concluded that the request for email service was not prohibited by international agreement, and was reasonably calculated to notify the defendant of the case and give it an opportunity to present objections, given the cost and delay associated with traditional means of service in the case.
Judge Gilstrap granted the motion in modified form after detailing the plaintiffs exhaustion of “all reasonable means of attempting to contact” the defendant including taking what the court characterized as the “enterprising step” of purchasing a product to try to find better contact information.
After finding that the plaintiffs had attempted multiple times to personally serve defendants, the court granted in part the motion for substitute service, and listed several methods which were required as substitute service, including service by Facebook messaging.
The court denied the motion, finding that there were grounds for an extension for service based on the plaintiffs multiple attempts to serve the defendant, and the defendant’s representation that it would waive service. The court also found that the defendant had waived its special appearance.
Yes, it’s possible to have a case look as bad as the Texas’ stern. The plaintiff didn’t realize it had not served the defendant with process for seven months. Noting that there was no good cause shown for the lack of service, Judge Albright denied the motion to extend the time to serve, and dismissed the case.
In a situation with all the hallmarks of defendants attempting to avoid service, Judge Sean Jordan granted a motion for alternative service.
Judge Payne denied the motions to dismiss for lack of personal jurisdiction and insufficient process, as well as the motion to transfer to the CDTX, with the defendant’s arguments from the former tripping up the latter.
The defendant sought to dismiss for lack of personal jurisdiction and alleged delay in service.
I think the 1989 Concord Blue Devils said it best – ya gotta try. But this Order Denying Motion For Alternative Service did as well.