Case 1:18-cv-10355-WGY Document 24 Filed 06/01/18 Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`REALTIME ADAPTIVE STREAMING LLC,
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` Plaintiff,
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`v.
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`ADOBE SYSTEMS INCORPORATED,
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` Defendant.
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`Case No. 1:18-cv-10355-WGY
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`JURY TRIAL DEMANDED
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`DEFENDANT’S MOTION TO CHANGE VENUE
`TO THE NORTHERN DISTRICT OF CALIFORNIA
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`

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`Case 1:18-cv-10355-WGY Document 24 Filed 06/01/18 Page 2 of 14
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`TABLE OF CONTENTS
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`I.
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`II.
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`III.
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`IV.
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`A.
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`B.
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`C.
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`INTRODUCTION ........................................................................................................ 1
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`BACKGROUND .......................................................................................................... 1
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`LEGAL STANDARD ................................................................................................... 5
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`ARGUMENT ................................................................................................................ 6
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`This Case Could Have Been Brought in the Northern District of California ............... 6
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`Realtime’s Choice of Forum Should Be Accorded Little Weight ................................ 6
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`Convenience of the Parties, Convenience of the Witnesses, and Location of Evidence
`Favors Transfer ............................................................................................................. 7
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`D.
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`The Connection Between the Forum and the Issues in Dispute Favors Transfer ......... 9
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`E.
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`F.
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`The “Law To Be Applied” Is Neutral ........................................................................... 9
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`State/Public Interest Factors Favor Transfer ............................................................... 10
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`V.
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`CONCLUSION ........................................................................................................... 10
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`ii
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`Case 1:18-cv-10355-WGY Document 24 Filed 06/01/18 Page 3 of 14
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`
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Boateng v. Gen. Dynamics Corp.,
`460 F. Supp. 2d 270 (D. Mass. 2006) ........................................................................................9
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`Fed. Ins. Co. v. XTRA Intermodal, Inc.,
`2015 WL 4275181 (D. Mass. July 15, 2015) .........................................................................5, 6
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`In Re Hoffman-La Roche Inc.,
`587 F.3d 1333 (Fed. Cir. 2008)................................................................................................10
`
`In re Morgan Stanley,
`417 F. App’x 947 (Fed. Cir. 2011) ............................................................................................2
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`Promera Health, LLC v. Vireo Sys.,
`2016 U.S. Dist. LEXIS 30659 (D. Mass. Jan. 8, 2016) .............................................................5
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`Realtime Data LLC d/b/a IXO LLC v. Sling TV LLC,
`No. 1:17-cv-02097, Dkt. No. 2 (D. Colo. Aug. 31, 2017) .........................................................2
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`Shipley Company, Inc. v. Clark,
`728 F. Supp. 818 (D. Mass. 1990) .............................................................................................5
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`World Energy Alts., LLC, v. Settlemyre Indus., Inc.,
`671 F. Supp. 2d 215 (D. Mass. 2009) ........................................................................................5
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`Statutes
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`28 U.S.C. § 1400(b) .........................................................................................................................6
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`28 U.S.C. § 1404(a) .....................................................................................................................1, 5
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`Other Authorities
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`L.R. 7.1(a)(2) .................................................................................................................................11
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`iii
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`Case 1:18-cv-10355-WGY Document 24 Filed 06/01/18 Page 4 of 14
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`Pursuant to 28 U.S.C. § 1404(a), defendant Adobe Systems Incorporated (“Adobe”)
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`respectfully moves the Court for an order transferring venue in this action to the Northern
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`District of California.
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`I.
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`INTRODUCTION
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`There is no compelling reason why Plaintiff Realtime Adaptive Streaming LLC
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`(“Realtime”) filed suit in this District. Realtime and its affiliated entities are patent-holding
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`companies with no known operations in this District (and little by way of meaningful operations
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`elsewhere). In fact, the Realtime entities are currently pursuing cases against approximately 100
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`different companies in venues around the country, including the Eastern District of Texas, the
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`District of Colorado, the Northern, Central and Southern Districts of California, the District of
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`Delaware, and the Southern District of New York, among others. Realtime has not explained
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`why it chose to file this particular lawsuit in this particular District (as opposed to the many other
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`venues where it is engaged in active litigation). Indeed, the vast multiplicity of cases Realtime
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`has filed in locations around the country suggests that it has no particular “home turf,” and so its
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`choice of venue here should be given little weight.
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`Adobe, by contrast, has only a limited presence in this District. Specifically with respect
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`to the products accused of infringing, the bulk of the design and development activity took place
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`in and around Adobe’s corporate headquarters in San Jose, California. Out of the over 145
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`employees Adobe has identified who work on the accused products, only one employee is
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`working remotely in this District. Adobe’s documents are also concentrated in Northern
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`California. Given Adobe’s strong ties to the Northern District of California, and the lack of any
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`compelling connection to this District, transfer is warranted.
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`II.
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`BACKGROUND
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`According to the complaint, the Plaintiff in this case, Realtime Adaptive Streaming, LLC
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`1
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`Case 1:18-cv-10355-WGY Document 24 Filed 06/01/18 Page 5 of 14
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`is “a Texas limited liability company” with a “place of business at 1828 E.S.E. Loop 323, Tyler,
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`Texas 75701.” [Dkt. 1, ¶ 1.] Realtime was apparently formed in Texas in May of 2016, and its
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`records list a mailing address in New York. [See Ex. A.] Realtime is apparently not registered
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`with the Massachusetts Secretary of State. [See Ex. B.]
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`Realtime appears to have a relationship with another entity: Realtime Data, LLC. Both
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`Realtime Adaptive Streaming, LLC and Realtime Data, LLC share the same three directors:
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`Gerald Padian, Richard G. Tashjian, and Stephen McErlain. [See Exs. C-D.] Also, several of
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`the asserted patents were previously assigned to Realtime Data LLC. [See Dkt. 1, Exs. A, C-D.]
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`Further, in a related case in the District of Colorado, Realtime Data, LLC sued on one of the
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`same patents asserted in this case by Realtime Adaptive Streaming LLC (the ʼ535 Patent), even
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`though that patent was allegedly owned by Realtime Adaptive Streaming LLC at the time of that
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`filing. See Realtime Data LLC d/b/a IXO LLC v. Sling TV LLC, No. 1:17-cv-02097, Dkt. No. 2
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`(D. Colo. Aug. 31, 2017); see also Ex. E.
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`The inventors of the ʼ046, ʼ442, ʼ535, ʼ907, and ʼ477 Patents apparently live in New
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`York. [Dkt. 1, Exs. A, C-D, F-G.] The inventors of the ʼ462 and ʼ298 Patents are apparently
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`located in Europe. [Dkt. 1, Exs. B, E.] Thus, Realtime has no known or discernable connection
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`to the District of Massachusetts. In fact, Realtime has no known business other than the
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`assertion of patents. C.f. In re Morgan Stanley, 417 F. App’x 947, 948 (Fed. Cir. 2011) (noting
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`Realtime Data, LLC was “a non-practicing entity headquartered in New York”). The various
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`Realtime entities have been prolific, filing over 100 lawsuits in districts around the country,
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`including the Eastern District of Texas, the District of Colorado, the Northern, Central and
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`Southern Districts of California, the District of Delaware, and the Southern District of New
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`York, among others. [See Ex. F.]
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`2
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`Case 1:18-cv-10355-WGY Document 24 Filed 06/01/18 Page 6 of 14
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`Realtime filed this action on February 23, 2018, alleging that Adobe infringes seven
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`United States patents: 7,386,046 (the “’046 Patent”), 8,634,462 (the “’462 Patent”), 8,929,442
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`(the “’442 Patent”), 8,934,535 (the “’535 Patent”), 9,578,298 (the “’298 Patent”), 9,762,907 (the
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`“’907 Patent”), and 9,769,477 (the “’477 Patent”) (collectively, the “Patents-In-Suit”). Realtime
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`claims that these patents cover certain aspects of video encoding/decoding standards, including
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`two standards known as H.264 and H.265. [Dkt. 1, ¶¶ 19, 37.]
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`Adobe is a Delaware company with its headquarters in San Jose, California. [Dkt. 1,
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`¶ 2.] Adobe is a software company, and the accused products include various software products:
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`Adobe Media Encoder, Media Encoder Creative Cloud (“CC”), Media Encoder Creative Suite
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`(“CS”), Premiere Pro, Premiere Pro CC, Premiere Pro CS, Flash, Flash Player, Flash Media
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`Server, Flash Media Encoding Server, After Effects, After Effects CC, After Effects CS, and
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`HTTP Dynamic Streaming (“HDS”). [Dkt. 1, ¶¶ 17, 35, 58, 76, 94, 113, 131.] These products
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`can be broadly grouped into four categories.
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`The first category of accused products, referred to herein as the “Flash products,” include
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`Adobe Flash and Flash Player. The engineering, design, and development of the Flash products,
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`including engineering management, are currently and primarily performed in the Northern
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`District of California. [Declaration of Govind Balakrishnan (“Balakrishnan Decl.”), ¶ 6.]
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`Product management and marketing of the Flash products are also currently and primarily
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`performed in the Northern District of California. [Id.] Development work on implementing any
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`supported aspects of H.264 and/or H.265 took place in the Northern District of California. [Id., ¶
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`7.] No development, program management, or marketing work on the Flash products took or
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`takes place in Massachusetts. [Id., ¶ 8.] Documents for the Flash products are located in or
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`accessible from Adobe’s headquarters in San Jose. [Id., ¶ 9.]
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`The second category of accused products, referred to herein as the “DVA products,”
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`include the Adobe Media Encoder products, Adobe Premiere Pro products, and Adobe After
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`Effects products. The engineering, design, and development work on the Adobe DVA products,
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`including engineering management, are currently and primarily performed in the Bay Area of
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`California; San Diego, California; Ontario, Canada; and Minnesota. [Declaration of David
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`McGavran (“McGavran Decl.”), ¶ 5.] Product management of the DVA products is currently
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`and primarily performed in San Jose, California; Germany; and Montreal, Canada. [Id.]
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`Marketing of the DVA products is currently and primarily performed in San Francisco,
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`California. [Id.] The development work on implementing any supported aspects of H.264
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`and/or H.265 took place in San Jose, California and Noida, India. [Id., ¶ 6.] Documents for the
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`DVA products are located in or accessible from Adobe’s headquarters in San Jose. [Id., ¶ 10]
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`Of the over 145 Adobe employees, vendors, and contractors that work on the DVA Products,
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`only one remote worker is located in Massachusetts. [Id., ¶ 8.]
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`A third category of accused products include Adobe HTTP Dynamic Streaming (“HDS”)
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`and Flash Media Server (“FMS”). The engineering, design, development (including engineering
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`management), product management, and marketing for HDS and FMS took place in San
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`Francisco and San Jose, California. [Declaration of Srinivas Manapragada (“Manapragada
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`Decl.”), ¶ 4.] None of these activities for HDS or FMS took place in Massachusetts. [Id.]
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`Documents for HDS and FMS are located in or accessible from Adobe’s facilities in San Jose
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`and San Francisco, California. [Id., ¶ 5.]
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`The last accused product is Flash Media Encoding Server (“FMES”). This accused
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`product is referred to as a “white-labeled” product, which means that Adobe acquired it from a
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`third-party company and applied Adobe branding. [Declaration of Kevin Towes (“Towes
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`Decl.”), ¶ 4.] FMES was obtained from a company called Rhozet, which is now a part of
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`Harmonic, Inc., both of which were located in the Northern District of California. [Id., ¶ 4; Exs.
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`K-L.] While Adobe has not sold this product within the past 6 years, the engineering, design,
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`development, engineering management, product management, and marketing for the product all
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`took place in San Jose and San Francisco, California, not in Massachusetts. [Towes Decl., ¶ 6.]
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`This case is at a very early stage. Adobe filed its Answer on May 18. [Dkt. 18.] No
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`scheduling conference has been held, and no trial date has been set.
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`III. LEGAL STANDARD
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`“For the convenience of parties and witnesses, in the interest of justice, a district court
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`may transfer any civil action to any other district or division where it might have been brought or
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`to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). “[T]he
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`statute’s purpose is ‘to prevent the waste of time, energy and money and to protect litigants,
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`witnesses and the public against unnecessary inconvenience and expenses.’” World Energy
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`Alts., LLC, v. Settlemyre Indus., Inc., 671 F. Supp. 2d 215, 217 (D. Mass. 2009) (quoting Van
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`Dusen v. Barrack, 376 U.S. 612, 616 (1964)). Facts to consider in the transfer analysis include
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`“1) the plaintiff’s choice of forum, 2) the relative convenience of the parties, 3) the convenience
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`of the witnesses and location of documents, 4) any connection between the forum and the issues,
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`5) the law to be applied and 6) the state or public interests at stake.” Promera Health, LLC v.
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`Vireo Sys., 2016 U.S. Dist. LEXIS 30659 at *5-6 (D. Mass. Jan. 8, 2016). “[O]f all the factors
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`considered in a change-of-venue motion, the convenience of expected witnesses is probably the
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`most important factor, and the factor most frequently mentioned.” Fed. Ins. Co. v. XTRA
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`Intermodal, Inc., 2015 WL 4275181, at *5 (D. Mass. July 15, 2015). Defendant bears the burden
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`to show that a transfer is warranted. Shipley Company, Inc. v. Clark, 728 F. Supp. 818, 823 (D.
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`Mass. 1990).
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`Case 1:18-cv-10355-WGY Document 24 Filed 06/01/18 Page 9 of 14
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`IV. ARGUMENT
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`A.
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`This Case Could Have Been Brought in the Northern District of California
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`Under 28 U.S.C. § 1400(b), a patent-infringement action may be brought in “the judicial
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`district where the defendant resides, or where the defendant has committed acts of infringement
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`and has a regular and established place of business.” Adobe has a “regular and established place
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`of business” in the Northern District of California, since it is headquartered there. [See Dkt. 1,
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`¶ 2; Dkt. 18, ¶ 2.] The alleged acts of infringement are Adobe’s sales of software, which take
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`place around the country, including in the Northern District of California. [Dkt. 1, ¶ 17.] Venue
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`is thus proper in the Northern District of California, and this case could have been brought there.
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`B.
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`Realtime’s Choice of Forum Should Be Accorded Little Weight
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`Court’s traditionally give deference to a plaintiff’s choice of forum, but “when the
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`plaintiff is not bringing suit on its ‘home turf,’ or the operative events did not occur in the forum
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`state, the plaintiff’s choice of forum is accorded less weight.” XTRA Intermodal, 2015 WL
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`4275181, at *4. Here, Realtime is not on its home turf, and none of the operative events
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`occurred in Massachusetts.
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`Realtime is a Texas limited liability company and is not registered to do business in the
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`Commonwealth of Massachusetts. [Exs. A, B.] Realtime was apparently registered in Texas in
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`May of 2016, listing a mailing address in New York. [Ex. A.] Realtime appears to be affiliated
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`with an entity called Realtime Data, LLC, which is a New York limited liability company. [Ex.
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`D.] The inventors of the ʼ046, ʼ442, ʼ535, ʼ907, and ʼ477 Patents appear to live in New York.
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`[Dkt. 1, Exs. A, C-D, F-G.] The inventors of the ʼ462 and ʼ298 Patents appear to be based in
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`Europe. [Dkt. 1, Exs. B, E.] Thus Realtime has no known or discernable ties to this District.
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`The fact that Massachusetts is not Realtime’s “home turf” is confirmed by the fact that it
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`has sued over 100 companies in locations around the country, including the Eastern District of
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`Case 1:18-cv-10355-WGY Document 24 Filed 06/01/18 Page 10 of 14
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`Texas, the District of Colorado, the Northern, Central and Southern Districts of California, the
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`District of Delaware, and the Southern District of New York, among others. [Ex. F.] Focusing
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`just on Realtime Adaptive Streaming, LLC, this is the only lawsuit, out of 21 pending cases, that
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`was filed in this District. [Id.] By contrast, that entity has eight pending lawsuits in the District
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`of Colorado, five in the Eastern District of Texas, four in the District of Delaware, and three in
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`the Central District of California. [Id.]1 Realtime has sought to consolidate these cases in the
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`District of Colorado, not in this District. [Dkt. 17.] Thus to the extent Realtime argues that
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`Massachusetts is allegedly its “home turf,” or even that it is simply a more convenient forum for
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`resolution of this dispute, that assertion is belied by Realtime’s choice to sue far more frequently
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`in other venues, and its request to have even this dispute resolved primarily in Colorado.
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`Finally, as described further below, nearly all of the design, development, and
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`implementation of the allegedly infringing technology was performed outside of Massachusetts,
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`with the bulk of that work taking place in the Northern District of California. Only one engineer,
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`out of more than 145 who worked on the accused Adobe products, works remotely from his
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`home in Massachusetts. Because Realtime is not located here, and because the operative events
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`did not occur in Massachusetts, Realtime’s choice of forum is entitled to little weight.
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`C.
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`Convenience of the Parties, Convenience of the Witnesses, and Location of
`Evidence Favors Transfer
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`Realtime has no known or discernible ties to the District of Massachusetts. It is not
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`incorporated here and has no known offices or employees in this District. It is not even
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`registered to do business in this District. The named inventors on its patents apparently reside
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`outside of the District, in New York and in Europe.
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`1 Similarly, Realtime’s affiliated entity Realtime Data LLC appears to have filed only two
`lawsuits in this District, out of 81 total district court litigations. [Ex. F.]
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`Case 1:18-cv-10355-WGY Document 24 Filed 06/01/18 Page 11 of 14
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`The vast majority of Adobe’s potential witnesses, by contrast, are located in the Northern
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`District of California. Adobe is headquartered in San Jose, which is within the Northern District
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`of California. The engineering, design, and development of the accused products, as well as
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`product management and marketing, are currently and primarily performed in the Northern
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`District of California. The development of any accused H.264 and H.265 functionalities took
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`place primarily in the Northern District of California. All of the documents related to Adobe’s
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`products are located in the Northern District of California, or are accessible from that location.
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`Adobe is not currently aware of any relevant third-party witnesses located in
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`Massachusetts. By contrast, significant third-party witnesses reside in California. For example,
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`the company that developed some of the accused codecs used in Adobe’s software
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`(MainConcept) is headquartered in San Diego, California. [McGavran Decl., ¶ 9.; Ex. G.] It
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`would be significantly more convenient for this third-party to travel within California, rather than
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`across the country. Also, the third-party companies responsible for the accused FMES software
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`were and are located in the Northern District of California. [See Exs. K-L.]
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`The only person that Adobe is aware of in this District is a single Adobe engineer (out of
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`over 145 people who worked on these products) who works from home. It is not clear that this
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`single engineer has any relevant knowledge with respect to this litigation, but even if Realtime
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`argues he does, his presence here is vastly outweighed by the evidence and documents located in
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`California.
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`The only possible convenience argument that Realtime could make is that Massachusetts
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`is more convenient for its New York witnesses than the Northern District of California, but this
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`assertion is belied by the fact that Realtime and its affiliated entities have chosen to sue
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`concurrently in districts in California, Colorado, Delaware, and Texas. It will take Realtime’s
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`Case 1:18-cv-10355-WGY Document 24 Filed 06/01/18 Page 12 of 14
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`witnesses at least 6 hours to travel from New York to Tyler, Texas. [Exs. H-I.] The travel time
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`from New York to San Francisco is not significantly different. [Ex. J.] Thus any arguments
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`Realtime makes about concerns of convenience for its witnesses are contradicted by its own
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`actions.
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`“[T]he convenience of expected witnesses is probably the most important factor[.]” See
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`Boateng v. Gen. Dynamics Corp., 460 F. Supp. 2d 270, 275 (D. Mass. 2006). Because the vast
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`majority of evidence and witnesses in this case are not located in the District of Massachusetts,
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`and are instead located in and around Adobe’s headquarters in Northern California, the Court
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`should find that this factor weighs heavily in favor of transfer.
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`D.
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`The Connection Between the Forum and the Issues in Dispute Favors
`Transfer
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`As discussed above, Realtime apparently has no connections to this District. While it is
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`true that Adobe has two offices in Massachusetts, none of the primary engineering, design,
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`development, management, or marketing of the accused products takes place there. Only one
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`Adobe engineer on the accused products (out of over 145) currently works from his home in
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`Massachusetts. Conversely, the primary engineering, design, development, management, and
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`marketing of the accused products takes place in the Northern District of California. Given the
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`weak ties between the current forum and the issues in dispute, and the strong connection to the
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`Northern District of California, this factor weighs in favor of transfer.
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`E.
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`The “Law To Be Applied” Is Neutral
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`This is not a case that involves complex or unsettled issues of Massachusetts law;
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`regardless of the forum, federal patent law will apply. District Courts in both Massachusetts and
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`the Northern District of California are sophisticated and experienced with patent cases. As noted
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`above, this case has no particular or unique ties to Massachusetts. While Massachusetts may
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`Case 1:18-cv-10355-WGY Document 24 Filed 06/01/18 Page 13 of 14
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`have an interest in the fair enforcement and interpretation of patents, this interest is equally
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`prevalent in every district in the United States. Consequently, this factor is neutral.
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`F.
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`State/Public Interest Factors Favor Transfer
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`“[B]ecause the cause of action calls into question the work and reputation of several
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`individuals residing in or near” the Northern District of California, this factor weighs in favor of
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`transfer to that judicial district. In Re Hoffman-La Roche Inc., 587 F.3d 1333, 1336 (Fed. Cir.
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`2008). As discussed above, the bulk of the relevant engineers and employees who developed the
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`accused products and functionalities reside in the Northern District of California. The Northern
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`District of California has a local interest in resolving a dispute about the possible infringement of
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`software designed and developed in that district. Consequently, this factor favors transfer.
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`V.
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`CONCLUSION
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`The Northern District of California is the most convenient venue in which to try this case,
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`and thus transfer is appropriate. The Court should grant Adobe’s motion and transfer this action
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`to the Northern District of California.
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`Dated: June 1, 2018
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`Respectfully submitted,
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`By: /s/ Frank E. Scherkenbach
`Frank E. Scherkenbach (BBO #653,819)
`scherkenbach@fr.com
`Proshanto Mukherji (BBO #675,801)
`mukherji@fr.com
`Elizabeth G.H. Ranks (BBO #693,679)
`ranks@fr.com
`FISH & RICHARDSON P.C.
`One Marina Park Drive
`Boston, MA 02210
`Telephone: (617) 542-5070
`Facsimile: (617) 542-5906
`
`Counsel for Defendant
`ADOBE SYSTEMS INCORPORATED
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`Case 1:18-cv-10355-WGY Document 24 Filed 06/01/18 Page 14 of 14
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`CERTIFICATE OF COMPLIANCE WITH L.R. 7.1(a)(2)
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`I hereby state that counsel for Adobe complied with requirements of Local Rule 7.1(a)(2)
`by conferring with counsel for Plaintiff on June 1, 2018. Counsel understands that Plaintiff’s
`counsel opposes this motion.
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`/s/ Frank E. Scherkenbach
`Frank E. Scherkenbach
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`CERTIFICATE OF SERVICE
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`I hereby certify that this document(s) filed through the ECF system will be sent
`electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
`and paper copies will be sent to those indicated as non-registered participants on this 1st day of
`June, 2018.
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`
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`
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`/s/ Frank E. Scherkenbach
`Frank E. Scherkenbach
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`11
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