Case 5:20-cv-00111-RWS Document 15 Filed 08/24/20 Page 1 of 18 PageID #: 199
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
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`
`
`SABLE NETWORKS, INC. AND
`SABLE IP, LLC,
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`PALO ALTO NETWORKS, INC.,
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`)
`)
`)
`)
`)
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`)
`)
`
`DEFENDANT PALO ALTO NETWORKS, INC.’S MOTION AND SUPPORTING
`MEMORANDUM TO TRANSFER VENUE TO THE NORTHERN DISTRICT OF
`CALIFORNIA
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`
`
`
`
`Case No. 5:20-cv-00111-RWS
`
`
`
` )
`
`Plaintiffs,
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`Defendant.
`
`
`
`vs.
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`
`
`
`
`EX1043
`Palo Alto Networks v. Sable Networks
`IPR2020-01712
`
`

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`Case 5:20-cv-00111-RWS Document 15 Filed 08/24/20 Page 2 of 18 PageID #: 200
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`
`
`TABLE OF CONTENTS
`INTRODUCTION................................................................................................................. 1
`I.
`II. ARGUMENT ......................................................................................................................... 2
`A. LEGAL STANDARD ............................................................................................................... 2
`B.
`THIS ACTION COULD HAVE BEEN BROUGHT IN THE NORTHERN DISTRICT OF CALIFORNIA 3
`C.
`THE PRIVATE INTEREST FACTORS WEIGH HEAVILY IN FAVOR OF TRANSFER ...................... 4
`1. THE RELATIVE EASE OF ACCESS TO SOURCES OF PROOF FAVORS TRANSFER. ............................. 4
`2. THE AVAILABILITY OF COMPULSORY PROCESS TO SECURE THE ATTENDANCE OF WITNESSES
`FAVORS TRANSFER. ................................................................................................................ 8
`3. THE COST OF ATTENDANCE FOR WILLING WITNESSES FAVORS TRANSFER. ................................. 9
`4. ALL OTHER PRACTICAL PROBLEMS THAT MAKE TRIAL OF A CASE EASY, EXPEDITIOUS, AND
`INEXPENSIVE FAVOR TRANSFER. ........................................................................................... 11
`D. THE PUBLIC INTEREST FACTORS FAVOR TRANSFER .......................................................... 11
`1. THE ADMINISTRATIVE DIFFICULTIES FLOWING FROM COURT CONGESTION IS NEUTRAL. .......... 11
`2. LOCAL INTEREST IN HAVING LOCALIZED INTERESTS DECIDED AT HOME FAVORS TRANSFER. .... 12
`3. THE FAMILIARITY OF THE FORUM WITH THE GOVERNING LAW PUBLIC INTEREST FACTOR IS
`NEUTRAL. ............................................................................................................................ 13
`4. THE AVOIDANCE OF UNNECESSARY PROBLEMS OF CONFLICT OF LAWS PUBLIC INTEREST FACTOR
`IS NEUTRAL. ........................................................................................................................ 13
`III. CONCLUSION ............................................................................................................... 14
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`i
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`

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`Case 5:20-cv-00111-RWS Document 15 Filed 08/24/20 Page 3 of 18 PageID #: 201
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`TABLE OF AUTHORITIES
`
`Cases
`AGIS Software Development LLC v. HTC Corp., No. 2:17-CV-00514-JRG, 2018 WL 4680557
`(E.D. Tex. Sep. 28, 2018) ........................................................................................................... 2
`Astute Tech., LLC v. Learners Digest Int’l. LLC, Case No. 2:12-CV-689-WCB, 2014 WL
`12596468 (E.D. Tex. April 28, 2014) ....................................................................................... 13
`Cooktek Induction Sys., LLC v. I/O Controls Corp., No. 4:15-cv-548-ALM, 2016 WL 4095547
`(E.D. Tex. Aug. 2, 2016) .......................................................................................................... 11
`DSS Tech. Mgmt., Inc. v. Apple, Inc., No. 6:13-CV-919-JDL, 2014 WL 6847569 (E.D. Tex. Nov.
`7, 2014) ..................................................................................................................................... 11
`Fujitsu Ltd. v. Tellabs, Inc., 639 F.Supp.2d 761 (E.D. Tex. 2009)........................................... 4, 12
`Hammers v. Mayea-Chang, No. 2:19-CV-00181-JRG, 2019 WL 6728446 (E.D. Tex. Dec. 11,
`2019) ........................................................................................................................................... 6
`In re Acer Am. Corp., 626 F.3d 1252 (Fed. Cir. 2010) ................................................................... 7
`In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009) .......................................................... passim
`In re Hoffmann-La Roche, Inc., 587 F.3d 1333 (Fed. Cir. 2009) ....................................... 8, 12, 13
`In re Nintendo Co., Ltd., 589 F.3d 1194 (Fed. Cir. 2009) .................................................... 3, 9, 10
`In re TS Tech USA Corp., 551 F.3d 1315 (Fed. Cir. 2008) ............................................................ 2
`In re Volkswagen AG, 371 F.3d 201 (5th Cir. 2004) (“Volkswagen I”) ............................ 3, 10, 11
`In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir. 2008) (en banc) (“Volkswagen II”) . passim
`In re Volkswagen of Am., Inc., 566 F.3d 1349 (Fed. Cir. 2009) (“Volkswagen III”) ..................... 2
`QR Spex, Inc. v. Motorola, Inc., 507 F.Supp.2d 650 (E.D. Tex. 2007) ........................................ 14
`Software Rights Archive, LLC v. Google, Inc., No. 2:07-CV-511-CE, 2010 WL 2950351 (E.D.
`Tex. Jul. 22, 2010) ...................................................................................................................... 4
`SSL Services, LLC v. Cisco Sys., Inc., No. 2:15-cv-00433-JRG-RSP, 2016 WL 727673 (E.D.
`Tex. Feb. 24, 2016) ..................................................................................................................... 5
`TC Heartland LLC v. Kraft Food Group Brands LLC, 137 S.Ct. 1514 (2017) .............................. 4
`Voxpath RS, LLC v. LG Electronics U.S.A., Inc., No. 2:10-CV-160-JRG, 2012 WL 194370 (E.D.
`Tex. Jan. 23, 2012) ...................................................................................................................... 9
`Other Authorities
`28 U.S.C. § 1400(b) ........................................................................................................................ 4
`28 U.S.C. § 1404(a) ........................................................................................................ 1, 2, 10, 14
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`ii
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`Case 5:20-cv-00111-RWS Document 15 Filed 08/24/20 Page 4 of 18 PageID #: 202
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`Pursuant to 28 U.S.C. § 1404(a), Defendant Palo Alto Networks, Inc. (“Palo Alto
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`Networks”) respectfully requests an order transferring this action to the United States District
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`Court for the Northern District of California, where an overwhelming majority of relevant
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`witnesses, documents, and evidence is located.
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`I.
`
`INTRODUCTION
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`This is a patent infringement lawsuit brought by Sable Networks, Inc. and Sable IP, LLC
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`(collectively, “Sable”) against Palo Alto Networks.1
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`The Northern District of California is a clearly more convenient forum. Palo Alto
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`Networks’ headquarters in Santa Clara, California, houses its engineering research, design, and
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`development departments for its firewall products, including the Accused Products, and also the
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`marketing, sales, operations, product management, and finance departments as to the Accused
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`Products. All identified material and relevant witnesses and documentary or physical evidence in
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`connection with these departments are located within the Santa Clara, California, headquarters.
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`The source code for the Accused Products is developed, stored, and archived in Santa Clara,
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`California. The hardware appliances for the Accused Products also are designed and developed in
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`Palo Alto Networks’ California headquarters.
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`In addition, the Northern District of California is a clearly more convenient forum for
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`relevant third-party witnesses—including the named inventors and the prosecuting attorneys of the
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`
`
` 1
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` Collectively, Sable alleges that U.S. Patent Nos. 6,977,932, 7,012,919, 8,085,775, 8,243,593, and
`8,817,790 (collectively, the “Asserted Patents”) are infringed by the following Palo Alto Networks
`products: the PA-Series Appliances with PAN-OS 7.1 and later (PA-200, PA-220, PA-220R, PA-
`500, PA-800 Series, PA-2000 Series, PA-3000 Series, PA-3200 Series, PA-4000 Series, PA-5000
`Series, PA-5200 Series, PA-7000 Series), the VM-Series with PAN-OS 7.1 and later (VM-50, M-
`100, VM-200, VM-300, VM-500, VM-700, VM-1000-HV), and the PA-7000 Series (including
`PA-7080, PA-7050, PA-7000-20GQXM-NPC, PA-7000-20GXM-NPC, PAN-PA-7000-100G-
`NPC-A) (collectively, the “Accused Products”).
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`1
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`

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`Case 5:20-cv-00111-RWS Document 15 Filed 08/24/20 Page 5 of 18 PageID #: 203
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`Asserted Patents, the majority of whom are located within the Northern District of California, and
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`none of which are located in Texas. By contrast, Sable has no genuine ties to the Eastern District
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`of Texas.
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`Palo Alto Networks therefore respectfully asks the Court to grant this motion and transfer
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`this case to the Northern District of California.
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`II. ARGUMENT
`A.
`Section 1404(a) provides that “[f]or the convenience of parties and witnesses, in the interest
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`Legal Standard
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`of justice, a district court may transfer any civil action to any other district or division where it
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`might have been brought.” 28 U.S.C. § 1404(a). The Fifth and Federal Circuits have set forth the
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`standard to be used in deciding motions to transfer venue. See In re Volkswagen of Am., Inc., 545
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`F.3d 304, 315 (5th Cir. 2008) (en banc) (“Volkswagen II”); In re Volkswagen of Am., Inc., 566
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`F.3d 1349, 1351 (Fed. Cir. 2009) (“Volkswagen III”) (applying the Fifth Circuit’s en banc
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`Volkswagen II decision to rulings on transfer motions out of this Circuit);. In Volkswagen II, the
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`Fifth Circuit made clear that transfer is appropriate when the transferee forum is “clearly more
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`convenient” than the plaintiff’s chosen venue. Id.
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`“Fifth Circuit precedent clearly forbids treating plaintiff’s choice of venue as a distinct
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`factor in the § 1404(a) analysis.” In re TS Tech USA Corp., 551 F.3d 1315, 1320 (Fed. Cir. 2008)
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`(citing Volkswagen II, 545 F.3d at 314 n.10). Probably the most important inquiry is the location
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`of the evidence in the case, including witnesses and documents. See In re Genentech, Inc., 566
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`F.3d 1338, 1343 (Fed. Cir. 2009); AGIS Software Development LLC v. HTC Corp., No. 2:17-CV-
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`00514-JRG, 2018 WL 4680557 at *8 (E.D. Tex. Sep. 28, 2018) (stating that the “convenience of
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`the witnesses is probably the single most important factor in a transfer analysis”).
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`2
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`Case 5:20-cv-00111-RWS Document 15 Filed 08/24/20 Page 6 of 18 PageID #: 204
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`Under the Fifth Circuit’s framework, the threshold question is whether the suit could have
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`been brought in the proposed transferee district. In re Volkswagen AG, 371 F.3d 201, 203 (5th
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`Cir. 2004) (“Volkswagen I”). If the transferee district is a proper venue, then the court must weigh
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`the relative conveniences of parties and witnesses as well as the interests of the particular venues
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`in hearing the case. Id. In making the convenience determination, the Fifth Circuit considers
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`several private and public interest factors, with no single factor being dispositive. Id.
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`“The private interest factors are: ‘(1) the relative ease of access to sources of proof; (2) the
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`availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance
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`for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious
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`and inexpensive.’” Volkswagen II, 545 F.3d at 315 (quoting Volkswagen I, 371 F.3d at 203). “The
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`public interest factors are: ‘(1) the administrative difficulties flowing from court congestion; (2)
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`the local interest in having localized interests decided at home; (3) the familiarity of the forum
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`with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict
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`of laws [or in] the application of foreign law.’” Id. (quoting Volkswagen I, 371 F.3d at 203). When
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`balancing these factors, the Federal Circuit has instructed “that in a case featuring most witnesses
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`and evidence closer to the transferee venue with few or no convenience factors favoring the venue
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`chosen by the plaintiff, the trial court should grant a motion to transfer.” In re Nintendo Co., Ltd.,
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`589 F.3d 1194, 1198 (Fed. Cir. 2009).
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`This Action Could Have Been Brought in the Northern District of California
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`B.
`As a threshold issue, this case could have been brought in the Northern District of
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`California as venue is proper in that district. Venue in a patent infringement case is proper in the
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`district where the defendant corporation resides or where the defendant has committed the alleged
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`acts of infringement and maintains a regular and established place of business. 28 U.S.C. §
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`3
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`Case 5:20-cv-00111-RWS Document 15 Filed 08/24/20 Page 7 of 18 PageID #: 205
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`1400(b). Palo Alto Networks is headquartered in Santa Clara, California, within the Northern
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`District of California. Declaration of Maya Marcus (“Marcus Dec.”) at ¶ 2. Sable’s complaint
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`alleges that Palo Alto Networks infringes the Asserted Patents by “design[ing], mak[ing], sell[ing],
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`offer[ing] to sell, import[ing], and/or us[ing]” the Accused Products. See, e.g., Dkt. 1 ¶¶ 85, 105-
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`06, 126-27, 151-52, 172-73. The Accused Products were designed, developed, and tested at Palo
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`Alto Networks’ headquarters in Santa Clara, California. Marcus Dec. at ¶ 4. Thus, venue is proper
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`in the Northern District of California. See TC Heartland LLC v. Kraft Food Group Brands LLC,
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`137 S.Ct. 1514, 1521 (2017) (venue is proper where the defendant is incorporated, or where it has
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`committed an act of infringement and maintains a regular and established place of business).
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`C.
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`The Private Interest Factors Weigh Heavily in Favor of Transfer
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`1.
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`The relative ease of access to sources of proof favors transfer.
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`“[A]lmost invariably, this factor will turn upon which party will most probably have the
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`greater volume of documents relevant to the litigation and their presumed physical location in
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`relation to the transferee and transferor venues.” Fujitsu Ltd. v. Tellabs, Inc., 639 F.Supp.2d 761,
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`767 (E.D. Tex. 2009) (citing Volkswagen II, 545 F.3d at 314-15, inter alia). This is particularly
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`true in patent infringement cases, where the bulk of the relevant evidence usually comes from the
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`accused infringer. In re Genentech, 566 F.3d at 1345 (finding that “the place where the defendant’s
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`documents are kept weighs in favor of transfer to that location”); see also, Software Rights Archive,
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`LLC v. Google, Inc., No. 2:07-CV-511-CE, 2010 WL 2950351, at *2 (E.D. Tex. Jul. 22, 2010)
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`(stating that “the ease of accessing the defendants’ sources of proof weighs more heavily than the
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`ease of plaintiff’s proof, because the majority of relevant evidence in patent infringement suits
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`usually comes from the accused infringers”). Although there have been advances in electronic
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`data transfer technologies, the Court must consider the actual location of documents and physical
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`evidence. See, e.g., Volkswagen II, 545 F.3d at 316 (“That access to some sources of proof presents
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`4
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`Case 5:20-cv-00111-RWS Document 15 Filed 08/24/20 Page 8 of 18 PageID #: 206
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`a lesser inconvenience now than it might have absent recent developments does not render this
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`factor superfluous.”); see also, SSL Services, LLC v. Cisco Sys., Inc., No. 2:15-cv-00433-JRG-
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`RSP, 2016 WL 727673, at *3 (E.D. Tex. Feb. 24, 2016) (noting that “the Federal Circuit has
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`emphasized that the physical location of evidence remains an important consideration in the venue
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`analysis irrespective of the ease with which it can be remotely accessed; else this factor would be
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`‘superfluous’”) (citing In re Genentech, 566 F.3d at 1345).
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`Palo Alto Networks is headquartered in Santa Clara, California—located 7.7 miles from
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`the Northern District of California’s San Jose courthouse. Marcus Dec. at ¶ 2; Ex. A. Accordingly,
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`the vast majority of its physical and documentary evidence is located in that District. All of Palo
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`Alto Networks’ documents relating to the development, manufacturing, sales, and marketing of
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`the Accused Products are kept at Palo Alto Networks’ Santa Clara, California, headquarters.
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`Marcus Dec. at ¶ 5. The Accused Products are designed, developed, and tested at Palo Alto
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`Networks’ headquarters; the source code for the Accused Products is developed, maintained, and
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`archived there; and samples of the Accused Products are located there. Id. at ¶ 4. Documentation
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`(electronic or hard copy) concerning the Accused Products is located at Palo Alto Networks’ Santa
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`Clara, California, headquarters, including any technical, packaging, financial, or marketing
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`documents. Id. at ¶ 5. Moreover, to the extent any electronic data on the servers in Santa Clara,
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`California, are identified as relevant, this electronic data will need to be accessed and retrieved by
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`Palo Alto Networks’ IT employees in Santa Clara, California. Id. Each of these sources of
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`information will be highly relevant to any non-infringement position Palo Alto Networks may
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`develop during the course of this litigation and any infringement theory Sable may allege.
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`Further, all material and relevant employee witnesses with knowledge regarding the
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`Accused Products are located in California, not in Texas. Marcus Dec. at ¶¶ 6-9. Palo Alto
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`5
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`Case 5:20-cv-00111-RWS Document 15 Filed 08/24/20 Page 9 of 18 PageID #: 207
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`Networks’ Santa Clara, California, headquarters houses its technical, marketing, sales, operations,
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`product management, and finance departments relating to the Accused Products, and more than
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`half of its U.S. employees. Id. at ¶¶ 3, 5. All of Palo Alto Networks’ identified material and
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`relevant witnesses in this case are located in Santa Clara, California, including the following:
`
`•
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`•
`
`•
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`•
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`•
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`Jesse Ralston, Senior Vice President of Products Network Security: knowledge
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`regarding the design, development, and testing of the Accused Products;
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`Glen Gibson, Director, Product Management: knowledge regarding the design,
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`development, and testing of the hardware appliances of the Accused Products;
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`Ben Hansen, Senior Finance Manager: knowledge regarding U.S. revenue for
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`the Accused Products;
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`Vonnie French, Senior Vice President, Worldwide Operations: knowledge
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`regarding supply chain and manufacturing operational support of the Accused
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`Products; and
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`Navneet Singh, Product Marketing Senior Director: knowledge regarding
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`marketing of the Accused Products.
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`Id. at ¶ 8. In other words, all of Palo Alto Networks’ identified material and relevant witnesses
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`are housed in the company’s Santa Clara, California, headquarters, and no material and relevant
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`witnesses are located in Texas. Id. at ¶ 9. And while Palo Alto Networks does have an office and
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`warehouse in Plano, nothing relevant to trial proof is located in Plano. As a result, any documents,
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`witnesses, or evidence that may be located in Plano have no bearing on the transfer analysis.
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`Hammers v. Mayea-Chang, No. 2:19-CV-00181-JRG, 2019 WL 6728446, *7-*8 (E.D. Tex. Dec.
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`11, 2019) (noting that the transfer “inquiry is only focused on evidence that will be used at trial”).
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`6
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`Case 5:20-cv-00111-RWS Document 15 Filed 08/24/20 Page 10 of 18 PageID #: 208
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`Based on the location of Palo Alto Networks’ documents and witnesses, the inquiry under
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`this factor need not go any further. A transfer is warranted under this factor. Moreover, the
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`location of Sable’s witnesses and third-party witnesses also tip significantly in favor of transfer.
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`Plaintiff Sable has no apparent connection to Texas, and a strong connection to California.
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`According to the Complaint, Sable Networks, Inc. (“Sable Networks”) is actually “a corporation
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`organized and existing under the laws of the State of California,” while Sable IP, LLC (“Sable IP”)
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`is a “Delaware limited liability company with its principal place of business” in Minneapolis,
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`Minnesota. Dkt. 1 ¶¶ 13, 16. Sable Networks has a registered address located within the Northern
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`District of California—in Santa Clara, California. Ex. B. Further, the predecessor company to
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`Sable Networks that was referenced in the Complaint—Caspian Networks, Inc. (“Caspian
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`Networks”)—was also a California operating company located in San Jose, California, within the
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`Northern District of California. Ex. C. Accordingly, all of the sources of proof relating to Caspian
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`Networks and Sable Networks appear to be located in California, and Palo Alto Networks is not
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`aware of any Sable witnesses located in Texas. Sable has already retained counsel in California
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`as well. Dkt. 1 p. 45.
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`Further, the overwhelming majority of the named inventors of the five Asserted Patents
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`reside in the Northern District of California. Ex. D; see list in Section C.2, infra. None of the
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`named inventors resides in Texas. Exs. D-E. Further, the prosecuting attorneys for the Asserted
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`Patents also reside within the Northern District of California. Ex. F.
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`Accordingly, because specific sources of proof as well as the vast majority of witnesses
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`and evidence are located within the Northern District of California, this factor weighs heavily in
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`favor of transfer. See In re Acer Am. Corp., 626 F.3d 1252, 1255 (Fed. Cir. 2010) (“the
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`7
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`Case 5:20-cv-00111-RWS Document 15 Filed 08/24/20 Page 11 of 18 PageID #: 209
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`combination of multiple parties being headquartered in or near the transferee venue and no party
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`or witness in the plaintiffs chosen forum is an important consideration”) (citations omitted).
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`2.
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`The availability of compulsory process to secure the attendance of witnesses
`favors transfer.
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`For this factor, the Court evaluates whether this District or the Northern District of
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`California has subpoena power over non-party witnesses. See In re Hoffmann-La Roche, Inc., 587
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`F.3d 1333, 1337-38 (Fed. Cir. 2009) (district court should have weighed another venue’s absolute
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`subpoena power over non-party witnesses to favor transfer); In re Apple, Inc., 581 F. App’x 886,
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`889 (Fed. Cir. 2014) (compulsory-process factor “will weigh heavily in favor of transfer when
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`more third-party witnesses reside within the transferee venue”). A venue that enjoys the absolute
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`subpoena power for trial is more convenient than a venue where subpoenas will be subject to
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`motions to quash. Volkswagen II, 545 F.3d at 316-17.
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`Here, the Northern District of California enjoys absolute subpoena power. Nearly all
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`identified material and relevant non-party witnesses are subject to compulsory process in the
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`Northern District of California. The substantial majority of the named inventors (7 of the 9 living
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`inventors) of the Asserted Patents reside in California, and all but one of these reside within the
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`Northern District of California:
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`• Faizel Z. Lakhani in San Francisco, California (NDCA);
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`• John A. McBrayne in San Jose, California (NDCA);
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`• Gary G. Croke in Milpitas, California (NDCA);
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`• Surya K. Pappu in Milpitas, California (NDCA);
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`• Sharad R. Murthy in Menlo Park, California (NDCA);
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`• Vishnu Natchu in Mountain View, California (NDCA); and
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`• Tricci Y. So in Oceanside, California (SDCA).
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`8
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`Case 5:20-cv-00111-RWS Document 15 Filed 08/24/20 Page 12 of 18 PageID #: 210
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`Ex. D. Similarly, the prosecuting attorneys for all of the Asserted Patents, Martine Penilla &
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`Gencarella, LLP and West & Associates, A PC, are located in Sunnyvale, California and Walnut
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`Creek, California respectively, both within the Northern District of California. Ex. F. Moreover,
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`any third-party witnesses associated with Sable’s predecessor company, Caspian Networks, would
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`likely be located in San Jose, California, as Caspian Networks was located there.
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`The two remaining living inventors2—Scott Hauck of Seattle, WA and Paul Jezioranski of
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`Research Triangle Park, North Carolina—are not within the subpoena power of either this District
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`or the Northern District of California. Ex. E. Accordingly, these witnesses do not impact this
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`factor. In re Toyota Motor Corp., 747 F.3d 1338, 1340 (Fed. Cir. 2014) (“The comparison between
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`the transferor and transferee forums is not altered by the presence of other witnesses and
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`documents in places outside both forums.”) (citing In re Nintendo, 589 F.3d at 1199-200; In re
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`Genentech, 566 F.3d at 1346).
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`Palo Alto Networks is not aware of a single material and relevant non-party witness located
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`in the Eastern District of Texas or within 100-miles of Texarkana, Texas. Accordingly, the
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`Northern District of California has absolute subpoena power. This factor heavily favors transfer.
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`3.
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`The cost of attendance for willing witnesses favors transfer.
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`For this factor, the Court “must weigh the cost for witnesses to travel and attend trial” in
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`the Eastern District of Texas versus the Northern District of California. Voxpath RS, LLC v. LG
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`Electronics U.S.A., Inc., No. 2:10-CV-160-JRG, 2012 WL 194370 at *3 (E.D. Tex. Jan. 23, 2012).
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`This factor is generally the most important factor in a transfer analysis. See In re Genentech, 566
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`F.3d at 1343. This factor is to be analyzed in view of the Fifth Circuit’s “100–mile” rule, which
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`
`
` 2
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` The tenth named inventor, Lawrence G. Roberts, died in 2018 in Redwood City, California
`(NDCA).
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`9
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`Case 5:20-cv-00111-RWS Document 15 Filed 08/24/20 Page 13 of 18 PageID #: 211
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`provides that, “[w]hen the distance between an existing venue for trial of a matter and a proposed
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`venue under § 1404(a) is more than 100 miles, the factor of inconvenience to witnesses increases
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`in direct relationship to the additional distance to be traveled.” Volkswagen I, 371 F.3d at 204-
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`205.
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`As discussed in Section II.C.1, supra, all of Palo Alto Networks’ identified material and
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`relevant witnesses are located in the Northern District of California. None live in or near this
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`District, or in Texas. Palo Alto Networks has specifically identified several employees, all located
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`in Santa Clara, California, who are responsible for the design, development, marketing, sales,
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`finances, and product management of the Accused Products. Marcus Dec. at ¶ 8. These witnesses
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`and their Santa Clara, California, based teams collectively have knowledge regarding the entire
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`life cycle of the Accused Products, from design and development to the end of sale, and are likely
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`to serve as Rule 30(b)(6) corporate representatives and/or trial witnesses for Palo Alto Networks,
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`depending on the issues that arise in this case. These witnesses will have to travel over 1,800 miles
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`(at much greater expense and inconvenience) if the case remains in this District. Ex. G.
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`Accordingly, the Northern District of California is more convenient for all known relevant and
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`material party witnesses.
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`As identified in Section II.C.2, supra, nearly all material and relevant non-party witnesses
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`are also located within the Northern District of California. Specifically, the overwhelming
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`majority of the named inventors of the Asserted Patents and the prosecuting attorneys are located
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`in the Northern District of California. See id. Palo Alto Networks is not aware of any material
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`and relevant non-party witness located within the Eastern District of Texas.
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`Thus, this factor weighs heavily in favor of transfer. See In re Nintendo, 589 F.3d at 1198
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`(“[I]n a case featuring most witnesses and evidence closer to the transferee venue with few or no
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`convenience factors favoring the venue chosen by the plaintiff, the trial court should grant a motion
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`to transfer.”).
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`4.
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`All other practical problems that make trial of a case easy, expeditious, and
`inexpensive favor transfer.
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`The fourth private interest factor encompasses “all other practical problems that make trial
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`of a case easy, expeditious and inexpensive.” Volkswagen I, 371 F.3d at 203. This includes
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`problems “that are rationally based on judicial economy.” DSS Tech. Mgmt., Inc. v. Apple, Inc.,
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`No. 6:13-CV-919-JDL, 2014 WL 6847569, at *2 (E.D. Tex. Nov. 7, 2014). Prior to Sable filing
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`litigation this year, the patents-in-suit had not been previously litigated in any court. Sable has
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`brought two additional cases in this Court that involve the same Asserted Patents, and in each case
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`the defendant is similarly located in the Northern District of California. Sable Networks, Inc. v.
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`Fortinet, Inc., No. 5:20-cv-00109 (E.D. Tex.); Sable Networks, Inc. v. Hewlett Packard Enter. Co.,
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`No. 5:20-cv-00120 (E.D. Tex.). Additionally, this case is in its early stages and therefore there are
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`no practical problems that would deter this Court from transferring this litigation. Cooktek
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`Induction Sys., LLC v. I/O Controls Corp., No. 4:15-cv-548-ALM, 2016 WL 4095547, at *6 (E.D.
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`Tex. Aug. 2, 2016) (finding no practical problems for transfer when the Court had not previously
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`considered any substantive issues nor entered a claim construction order). This factor weighs in
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`favor of transfer.
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`D.
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`The Public Interest Factors Favor Transfer
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`1.
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`The administrative difficulties flowing from court congestion is neutral.
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`The speed with which a case can come to trial and be resolved is a factor in the transfer
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`analysis. In re Genentech, 566 F.3d at 1347. The Federal Court Management Statistics compiled
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`in March and June of 2020 show that the median time to disposition for civil cases in the Northern
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`District of California was an average of 9.15 months, whereas the average in the Eastern District
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`of Texas over the same timeframe was 9.2 months. Ex. H. Thus, this factor is neutral. Regardless,
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`the Federal Circuit has noted that this factor “appears to be the most speculative” and that “case-
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`disposition statistics may not always tell the whole story.” In re Genentech, 566 F.3d at 1347
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`(citation omitted). Accordingly, this factor should not impact the transfer analysis. See id.
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`(“Without attempting to predict how this case would be resolved and which court might resolve it
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`more quickly, we merely note that when, as here, several relevant factors weigh in favor of transfer
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`and others are neutral, then the speed of the transferee district court should not alone outweigh all
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`of those other factors.”).
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`2.
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`Local interest in having localized interests decided at home favors transfer.
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`This second public interest factor heavily favors transfer. It is widely understood that when
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`there are significant connections between a venue and the events that gave rise to the suit, this
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`factor should be weighed in favor of transfer to that venue. In re Hoffmann-La Roche, 587 at 1338
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`(citation omitted). There may be a strong local interest where “the cause of action calls into
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`question the work and reputation of several individuals residing in or near that district and who
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`presumably conduct business in that community.” Id. at 1336.
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`Here, the Northern District of California has a larger interest than this District in resolving
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`this dispute. Palo Alto Networks is headquartered in the Northern District of California, the
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`research and development of the Accused Products took place in the Northern District of
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`California, and documents and source code regarding the Accused Products are located in the
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`Northern District of California. Fujitsu Ltd. v. Tellabs, Inc., 639 F.Supp.2d 761, 769 (E.D. Tex.
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`2009) (finding this factor favored transfer where the accused products were designed and
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`developed at the defendant’s principal place of business in the transferee forum). All of Palo Alto
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`Networks’ expected material and relevant witnesses – the individuals who worked on and continue
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`to work on the Accused Products, and whose work is at issue by Sable’s allegations of
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`infringement—are located in the Northern District of California. In re Hoffmann-LaRoche, 587
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`F.3d at 1336 (transferee forum’s local interest in the case “remains strong because the cause of
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`action calls into question the work and reputation of several individuals residing in or near that
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`district and who presumably c