The Federal Circuit just issued Backertop Licensing LLC v. Canary Connect, Inc., No. 23-2367, Dkt. 51 (Fed. Cir. Jul. 16, 2024). Others have posted about this case in the context of the ongoing investigation into IP Edge. [Edited] Federal courts (but not attorneys) have inherent power beyond FRCP 45 to compel any third party in the USA to attend a hearing, regardless of the geographic limitations (in-state, or within 100 miles) of FRCP 45(c). In your opinion, is this the right outcome? Also, if courts can compel witnesses across the USA, then is the compulsory process transfer factor (unwilling 3rd party witnesses) in the venue transfer analysis effectively moot for domestic witnesses?
This particular individual had already shown up for an earlier hearing, and was not a third party.
The challenged order was based on the Court's inherent powers, not on Rule 45.
Patent Litigator (District Court, ITC, PTAB) @ Bracewell LLP
5moThe opinion explicitly states that the Court’s compelling did NOT fall under FRCP 45. And I don’t think attorneys can compel attendance within 100 miles under FRCP 45—only request. If the person refuses, the attorney files a motion to compel, and then the Court compels.