`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`ECOFACTOR, INC.,
`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`§
`§
`§
`§
`§
`§
`§
`§
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`6-20-CV-00075-ADA
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`ORDER DENYING MOTION TO TRANSFER VENUE
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`Before the Court is Defendant Google LLC’s (“Google”) motion to transfer (ECF No. 19)
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`to the Northern District of California (“NDCA”) pursuant to 28 U.S.C. § 1404(a). After careful
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`consideration of the parties’ briefs and the applicable law, the Court DENIES Google’s Motion
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`to Transfer.
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`I. BACKGROUND
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`Plaintiff EcoFactor, Inc. (“Ecofactor”) filed this lawsuit on January 31, 2020, alleging
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`that Google’s Nest Learning Thermostat line of products infringe U.S. Patent Nos. 8,180,492,
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`8,412,488, 8,738,327, and 10,534,382 (the “Asserted Patents”). Pl.’s Compl., ECF No. 1. On
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`May 27, 2020, Google filed an answer (ECF No. 16) and this motion to transfer venue under 28
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`U.S.C. § 1404(a) requesting that this case be transferred to the NDCA. Def.’s Mot., ECF No. 19.
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`EcoFactor is a California corporation with its corporate headquarters in Palo Alto,
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`California. ECF No. 1, at ¶ 2. Google is a Delaware limited liability company with its corporate
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`headquarters located in Mountain View, California. Def.’s Answer, ECF No. 16, at ¶ 5. Google
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`maintains a corporate office in Austin, Texas and has been registered to do business in the State
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`of Texas for over fourteen years. Id. at ¶¶ 5, 8.
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`1
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`EcoFactor, Inc.
`Exhibit 2012
`IPR2021-00054
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`Page 1 of 12
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`Case 6:20-cv-00075-ADA Document 62 Filed 04/16/21 Page 2 of 12
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`II. LEGAL STANDARD
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`In patent cases, motions to transfer under 28 U.S.C. § 1404(a) are governed by the law of
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`the regional circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). 28 U.S.C.
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`§ 1404(a) provides that, “[f]or the convenience of parties and witnesses, . . . a district court may
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`transfer any civil action to any other district or division where it might have been brought or to
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`any district or division to which all parties have consented.” Id. “Section 1404(a) is intended to
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`place discretion in the district court to adjudicate motions for transfer according to an
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`‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v.
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`Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
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`The preliminary question under Section 1404(a) is whether a civil action “might have
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`been brought” in the transfer destination venue.” In re Volkswagen, Inc., 545 F.3d 304, 312 (5th
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`Cir. 2008) (hereinafter “Volkswagen II”). If the destination venue would have been a proper
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`venue, then “[t]he determination of ‘convenience’ turns on a number of public and private
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`interest factors, none of which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S.
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`Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004). The private factors include: “(1) the
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`relative ease of access to sources of proof; (2) the availability of compulsory process to secure
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`the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other
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`practical problems that make trial of a case easy, expeditious and inexpensive.” In re Volkswagen
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`AG, 371 F.3d 201, 203 (5th Cir. 2004) (hereinafter “Volkswagen I”) (citing to Piper Aircraft Co.
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`v. Reyno, 454 U.S. 235, 241 n.6 (1982)). The public factors include: “(1) the administrative
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`difficulties flowing from court congestion; (2) the local interest in having localized interests
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`decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4)
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`the avoidance of unnecessary problems of conflict of laws of the application of foreign law.” Id.
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`2
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`EcoFactor, Inc.
`Exhibit 2012
`IPR2021-00054
`
`Page 2 of 12
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`Case 6:20-cv-00075-ADA Document 62 Filed 04/16/21 Page 3 of 12
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`Courts evaluate these factors based on the situation which existed at the time of filing, rather
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`than relying on hindsight knowledge of the defendant’s forum preference. Hoffman v. Blaski, 363
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`U.S. 335, 343 (1960).
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`The burden to prove that a case should be transferred for convenience falls squarely on
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`the moving party. In re Vistaprint Ltd., 628 F.3d 1342, 1346 (Fed. Cir. 2010). The burden that a
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`movant must carry is not that the alternative venue is more convenient, but that it is clearly more
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`convenient. Volkswagen II, 545 F.3d at 314 n.10. Although the plaintiff’s choice of forum is not
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`a separate factor entitled to special weight, respect for the plaintiff’s choice of forum is
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`encompassed in the movant’s elevated burden to “clearly demonstrate” that the proposed
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`transferee forum is “clearly more convenient” than the forum in which the case was filed. In re
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`Vistaprint Ltd., 628 F.3d at 314–15. While “clearly more convenient” is not necessarily
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`equivalent to “clear and convincing,” the moving party “must show materially more than a mere
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`preponderance of convenience, lest the standard have no real or practical meaning.” Quest
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`NetTech Corp. v. Apple, Inc., No. 2:19-cv-118, 2019 WL 6344267, at *7 (E.D. Tex. Nov. 27,
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`2019).
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`III. ANALYSIS
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`The threshold determination in the Section 1404 analysis is whether this case could
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`initially have been brought in the destination venue—the NDCA. Neither party contests the fact
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`that venue is proper in the NDCA and that this case could have been brought there. Thus, the
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`Court proceeds with its analysis of the private and public interest factors.
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`A. The Private Interest Factors Weigh Against Transfer.
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`i. The Relative Ease of Access to Sources of Proof
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`3
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`EcoFactor, Inc.
`Exhibit 2012
`IPR2021-00054
`
`Page 3 of 12
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`Case 6:20-cv-00075-ADA Document 62 Filed 04/16/21 Page 4 of 12
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`“In considering the relative ease of access to proof, a court looks to where documentary
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`evidence, such as documents and physical evidence, is stored.” Fintiv Inc. v. Apple Inc., No.
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`6:18-cv-00372, 2019 WL 4743678, at *2 (W.D. Tex. Sept. 10, 2019). “[T]he question is relative
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`ease of access, not absolute ease of access.” In re Radmax, 720 F.3d 285, 288 (5th Cir. 2013)
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`(emphases in original). “In patent infringement cases, the bulk of the relevant evidence usually
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`comes from the accused infringer. Consequently, the place where the defendant’s documents are
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`kept weighs in favor of transfer to that location.” In re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir.
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`2020) (citing In re Genentech, 566 F.3d at 1345).
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`1. Witnesses Are Not Sources of Proof
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`Google argues that “any documents, source code, prototypes, and witnesses . . . are likely
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`in Palo Alto, California.” Def.’s Mot. at 10. This Court, in following Federal Circuit precedent,
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`has made clear that witnesses are not sources of proof to be analyzed under this factor; rather, the
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`Court considers only documents and physical evidence. Netlist, Inc. v. SK hynix Inc. et al, No.
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`6:20-cv-00194-ADA (W.D. Tex. Feb. 2, 2021) (“The first private factor, ease of access to
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`sources of proof, considers ‘documents and physical evidence’ as opposed to witnesses.”)
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`(emphasis added); In re Apple Inc., 979 F.3d 1332, 1339 (Fed. Cir. 2020) (“[t]his factor relates to
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`the ease of access to non-witness evidence, such as documents and other physical evidence”);
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`Volkswagen II, 545 F.3d at 315 (“All of the documents and physical evidence relating to the
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`accident are located in the Dallas Division”). Accordingly, any analysis pertaining to witnesses is
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`more appropriately assessed under the second or third private factor.
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`2. Location of Physical Documents
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`Google does not point with particularity to any relevant physical documents, nor does it
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`confirm the existence of any physical documents located in the NDCA. Rather, Google asserts in
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`4
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`EcoFactor, Inc.
`Exhibit 2012
`IPR2021-00054
`
`Page 4 of 12
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`Case 6:20-cv-00075-ADA Document 62 Filed 04/16/21 Page 5 of 12
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`conclusory fashion that any such evidence is “likely in Palo Alto, California.” Def.’s Mot. at 10.
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`As such, the Court is not persuaded by Google’s vague and conclusory argument regarding
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`physical documents. See Rockstar Consortium US LP v. Google Inc., No. 2:13-CV-893-JRG-
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`RSP, 2014 WL 4748692, at *3–5 (E.D. Tex. Sept. 23, 2014) (weight of the evidence presented
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`by Google for this factor did not meet its burden where Google provided “neither evidence of
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`where its documents are actually located nor evidence that these documents are more available or
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`accessible from the Northern District of California than they would be from [] Texas”).
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`EcoFactor likewise does not specifically point out in its response the location of any
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`relevant physical documents. EcoFactor does note that most relevant documents are
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`electronically stored and readily accessible from this District. Pl.’s Resp. at 3.
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`3. Location of Electronic Documents
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`Although the physical location of electronic documents does affect the outcome of this
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`factor under current Fifth Circuit precedent (see Volkswagen II, 545 F.3d at 316), this Court has
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`stressed that the focus on physical location of electronic documents is out of touch with modern
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`patent litigation. Fintiv, 2019 WL 4743678, at *8; Uniloc 2017 LLC v. Apple Inc., 6-19-CV-
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`00532-ADA, 2020 WL 3415880, at *9 (W.D. Tex. June 22, 2020) (“[A]ll (or nearly all)
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`produced documents exist as electronic documents on a party’s server. Then, with a click of a
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`mouse or a few keystrokes, the party [can] produce[] these documents” and make them available
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`at almost any location). Other courts in the Fifth Circuit similarly found that access to documents
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`that are available electronically provides little benefit in determining whether a particular venue
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`is more convenient than another. See Uniloc USA Inc. v. Samsung Elecs. Am., No. 2:16-cv-642-
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`JRG, 2017 U.S. Dist. LEXIS 229560, at *17 (E.D. Tex. Apr. 19, 2017) (“Despite the absence of
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`newer cases acknowledging that in today’s digital world computer stored documents are readily
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`5
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`EcoFactor, Inc.
`Exhibit 2012
`IPR2021-00054
`
`Page 5 of 12
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`Case 6:20-cv-00075-ADA Document 62 Filed 04/16/21 Page 6 of 12
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`moveable to almost anywhere at the click of a mouse, the Court finds it odd to ignore this reality
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`in favor of a fictional analysis that has more to do with early Xerox machines than modern server
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`forms.”).
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`In its motion, Google focuses heavily on the location of EcoFactor’s documents and
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`argues that evidence about EcoFactor’s patents and potential prior art is “likely in Northern
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`California.” Def.’s Mot. at 10. However, as EcoFactor points out, the realities of modern-day
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`electronic document storage and production is that “all of [its] documents are available
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`electronically and can easily be made available in this District.” Pl.’s Resp. at 4. Google does not
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`explain why those documents cannot be accessed from its Austin, Texas office.
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`Google also points out that review of its source code for the co-pending ITC litigation
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`between the parties took place in the NDCA because Google’s code and EcoFactor’s reviewers
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`are located there. Def.’s Mot. at 4. However, Google fails to identify where the source code is
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`actually stored. Even assuming Google’s source code is stored in the NDCA, “source code is, by
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`its very nature, electronic, it can be easily transported electronically to distant locations
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`essentially instantaneously.” Fintiv, 2019 WL 4743678, at *3 n.1. In fact, during the course of
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`that ITC proceeding, Google tried to move its source code review from Palo Alto to Washington
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`D.C. (Pl.’s Resp. at 4), which clearly shows that it has the capability to make the source code
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`available at another location, such as in Austin, Texas.
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`Because the relevant documentary evidence identified by the parties are electronically
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`available, which can be easily accessed from this District, the Court finds that this factor is
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`neutral.
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`ii. The Availability of Compulsory Process to Secure the Attendance of Witnesses
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`6
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`EcoFactor, Inc.
`Exhibit 2012
`IPR2021-00054
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`Page 6 of 12
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`Case 6:20-cv-00075-ADA Document 62 Filed 04/16/21 Page 7 of 12
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`In this factor, the Court considers particularly non-party witnesses whose attendance may
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`need to be secured by a court order. Fintiv, 2019 WL 4743678, at *5 (citing Volkswagen II, 545
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`F.3d at 316); Uniloc, 2020 WL 3415880, at *10. This factor “weigh[s] heavily in favor of
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`transfer when more third-party witnesses reside within the transferee venue than reside in the
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`transferor venue.” In re Apple, Inc., 581 F. App’x. 886, 889 (Fed. Cir. 2014). Under the Federal
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`Rules, a court may subpoena a witness to attend trial only (a) “within 100 miles of where the
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`person resides, is employed, or regularly transacts business in person”; or (b) “within the state
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`where the person resides, is employed, or regularly transacts business in person, if the person . . .
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`is commanded to attend a trial and would not incur substantial expense.” Fed. R. Civ. P.
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`45(c)(1)(A), (B)(ii); Gemalto S.A. v. CPI Card Grp. Inc., No. 15-CA-0910, 2015 WL 10818740,
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`at *4 (W.D. Tex. Dec. 16, 2015). As party witnesses almost invariably attend trial willingly,
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`“[w]hen no party has alleged or shown any witness’s unwillingness, a court should not attach
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`much weight to the compulsory process factor.” CloudofChange, LLC v. NCR Corp., No. 6-19-
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`cv-00513 (W.D. Tex. Mar. 17, 2020) (citation omitted).
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`
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`Google argues that the NDCA could compel the attendance of certain non-party
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`witnesses, while this Court cannot. Def.’s Mot. at 11. Google asserts that “relevant third-party
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`witnesses include the named inventors and possibly researchers who collaborated with
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`EcoFactor.” Id. However, Google fails to show that any of the mentioned witnesses are unwilling
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`to attend trial. Rather, Google asks the court to assume any such witnesses are unwilling. Id. But
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`hypothetical scenarios are not evidence of unwillingness. Turner v. Cincinnati Ins. Co., No.
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`6:19-cv-642-ADA-JCM, 2020 WL 210809, at *3 (W.D. Tex. Jan. 14, 2020) (“This private
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`interest factor carries far less weight when the movant has not alleged or shown that any
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`witnesses are unwilling to testify.”). Further, EcoFactor has a consulting agreement with Mr.
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`7
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`EcoFactor, Inc.
`Exhibit 2012
`IPR2021-00054
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`Page 7 of 12
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`Case 6:20-cv-00075-ADA Document 62 Filed 04/16/21 Page 8 of 12
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`Steinberg, the only named inventor who lives in NDCA. Pl.’s Resp. at 5. As such, his attendance
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`at trial can be secured without a subpoena. Id.
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`
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`As to the “possibly researchers” who may be relevant third-party witnesses, Google does
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`not identify the relevant knowledge, if any, that these alleged individuals may have. Google
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`cannot rely on cherry-picked “possibl[e]” witnesses who might live in NDCA to support its
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`argument—especially when Google cannot specifically identify those individuals, the nature of
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`the information those individuals have, and how any such information relates to this case. “The
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`Court gives more weight to those specifically identified witnesses and affords less weight to
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`vague assertions that witnesses are likely located in a particular forum.” Core Wireless
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`Licensing, S.A.R.L. v. Apple, Inc., No. 6:12-cv-100 LED-JDL, 2013 WL 682849, at *3 (E.D.
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`Tex. Feb. 22, 2013); Rockstar Consortium US LP v. Google Inc., No. 2:13-cv-893-JRG-RSP,
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`2014 WL 4748692, at *4–5 (burden not met where movant provided “little, if any, evidence for
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`the Court to work with as to what the witnesses would actually testify to and as to where the
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`witnesses actually live,” and made “no statement which, if any, of these witnesses will be called
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`to testify and whether any of the witnesses are willing or unwilling”).
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`
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`Finally, to the extent that any of Google’s out-of-district unidentified third-party
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`witnesses would be necessary for trial, Google does not assert that it would be inconvenienced
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`by presenting any such testimony by video. While there is some benefit to providing live
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`witnesses at trial, using non-party witnesses’ deposition as opposed to live testimony would not
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`likely inconvenience the party. See, e.g., Nexus Display Techs. LLC v. Dell, Inc., No. 2:14-cv-
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`762, 2015 WL 5043069, at *4. (E.D. Tex. Aug. 25, 2015). Google fails to acknowledge the
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`potential use of non-party witnesses’ deposition testimony, much less show that any such use
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`would inconvenience it.
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`8
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`EcoFactor, Inc.
`Exhibit 2012
`IPR2021-00054
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`Page 8 of 12
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`Case 6:20-cv-00075-ADA Document 62 Filed 04/16/21 Page 9 of 12
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`In view of the above, the Court finds this factor is neutral.
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`iii. The Cost of Attendance for Willing Witnesses
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`“The convenience of witnesses is the single most important factor in the transfer
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`analysis.” Fintiv, 2019 WL 4743678, at *6. “Courts properly give more weight to the
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`convenience of non-party witnesses than to party witnesses.” Netlist, No. 6:20-cv-00194-ADA at
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`13; see Moskowitz Family LLC v. Globus Med., Inc., No. 6:19-cv-00672-ADA, 2020 WL
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`4577710, at *4 (W.D. Tex. Jul. 2, 2020).
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`As a preliminary matter, given typical time limits at trial, the Court does not assume that
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`all of the party and third-party witnesses listed in Section 1404(a) briefing will testify at trial.
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`Fintiv, 2019 WL 4743678, at *6. Rather, in addition to the party’s experts, the Court assumes
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`that no more than a few party witnesses—and even fewer third-party witnesses, if any—will
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`testify live at trial. Id. Therefore, long lists of potential party and third-party witnesses do not
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`affect the Court’s analysis for this factor. Id.
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`Although Google specifically identifies three employee witnesses located in the NDCA,
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`Google admits that there are also employees in Texas with knowledge about the accused
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`products. Def.’s Mot. at 2; Shaper Decl. ¶¶ 10–14. EcoFactor represents that it has identified five
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`additional Google employees in Austin who work or have worked directly on the accused Nest
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`products and are thus highly likely to have relevant, material information. Pl.’s Resp. at 6.
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`Among those identified by EcoFactor are engineers and program managers involved in product
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`development, the “Head of Central Region Energy Partnerships” for Nest, and the Technical
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`Lead for the Data Integration team at Nest. Id.
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`Google also relies on EcoFactor’s potential witnesses to support its argument for transfer.
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`See Def.’s Mot. at 8. However, the “convenience of party witnesses is given little weight.”
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`9
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`EcoFactor, Inc.
`Exhibit 2012
`IPR2021-00054
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`Page 9 of 12
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`Case 6:20-cv-00075-ADA Document 62 Filed 04/16/21 Page 10 of 12
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`SynKloud Techs., LLC v. Dropbox, Inc., No. 6:19-cv-00525-ADA, 2020 WL 2494574, at *4
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`(W.D. Tex. May 14, 2020). When EcoFactor filed its actions in this Court, it had already taken
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`consideration of such potential costs. See Netlist, No. 6:20-cv-00194-ADA at 13. Further,
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`EcoFactor represents that its own representative and likely Rule 30(b)(6) witness has declared
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`that he is willing to attend trial in this District and that such attendance will not be inconvenient
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`for him. Pl.’s Resp. at 6. Therefore, the Court finds that this factor is also neutral.
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`iv. All Other Practical Problems That Make Trial of a Case Easy, Expeditious and
`Inexpensive
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`When considering the private interest factors, courts must consider “all other practical
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`problems that make trial of a case easy, expeditious and inexpensive.” Volkswagen II, 545 F.3d
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`at 314. “Particularly, the existence of duplicative suits involving the same or similar issues may
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`create practical difficulties that will weigh heavily in favor or against transfer.” PersonalWeb
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`Techs., LLC v. NEC Corp. of Am., Inc., No. 6:11-cv-655, 2013 WL 9600333, at *5 (E.D. Tex.
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`Mar. 21, 2013).
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`EcoFactor has filed multiple lawsuits in this District involving the same patents.1 The
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`cases involve overlapping issues, such as claim construction, invalidity, prior art, conception,
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`and reduction to practice. This Court has recognized that “judicial economy favors having the
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`infringement of the same patent considered by one judge.” SynKloud, 2020 WL 2494574, at *5.
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`Because parallel litigation concerning the same patent at issue is pending in this District,
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`this factor strongly weighs against transfer.
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`B. The Public Interest Factors Weigh Against Transfer.
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`i. Administrative Difficulties Flowing From Court Congestion
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`1 EcoFactor, Inc. v. Ecobee, Inc, No. 6:20-cv-00078-ADA; EcoFactor, Inc. v. Vivint, Inc., No. 6:20-cv-00080-ADA.
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`10
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`EcoFactor, Inc.
`Exhibit 2012
`IPR2021-00054
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`Page 10 of 12
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`Case 6:20-cv-00075-ADA Document 62 Filed 04/16/21 Page 11 of 12
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`The relevant inquiry under this factor is actually “[t]he speed with which a case can come
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`to trial and be resolved[.]” In re Genentech, Inc., 566 F.3d 1338, 1347 (Fed. Cir. 2009). A faster
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`average time to trial means a more efficient and economical resolutions of the claims at issue.
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`Google suggests that this factor is either neutral or weighs in favor of transfer because “statistics
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`show that the number of new patent cases in WDTX continues to rise, while NDCA received
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`fewer new cases between 2018 and 2019, and fewer cases last year than this Court alone.” Def.’s
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`Mot. at 13. However, Google then expressly admits that “this Court’s default schedule would
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`lead to a trial date sooner than the average time to trial in NDCA.” Id.
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`Google argues that “the COVID-19 pandemic makes trial schedules even more
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`speculative.” Id. However, this Court has demonstrated its capability of conducing in-person jury
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`trials in a safe and efficient manner in the COVID-19 pandemic. This Court held its first patent
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`jury trial in October 2020, and has held three more in-person jury trials in the first quarter of
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`2021 already. Thus, this Court is fully open and equipped to safely conduct jury trials in the
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`COVID-19 pandemic. Conversely, the NDCA suspended all criminal and civil jury trials until at
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`least early 2021, and there is no evidence that any division in the NDCA is fully open to this
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`date. If this case is transferred to the NDCA, in addition to deferred trial settings as a result of the
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`COVID-19 pandemic, transferring this case and establishing a new schedule with a new
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`presiding judge would cause greater delay. Therefore, this factor weighs heavily against transfer.
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`ii. Local Interest in Having Localized Interests Decided at Home
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`Under this factor, the Court must evaluate whether there is a local interest in deciding
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`local issues at home. Volkswagen II, 545 F.3d at 317. “A local interest is demonstrated by a
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`relevant factual connection between the events and the venue.” Word to Info, Inc. v. Facebook,
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`Inc., No. 3:14-cv-04387-K, 2015 WL 13870507, at *4 (N.D. Tex. Jul. 23, 2015).
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`11
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`EcoFactor, Inc.
`Exhibit 2012
`IPR2021-00054
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`Page 11 of 12
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`Case 6:20-cv-00075-ADA Document 62 Filed 04/16/21 Page 12 of 12
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`Google states that the NDCA has a stronger local interest because this litigation “involves
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`two companies currently located in that District, with extensive histories there.” Def.’s Mot. at
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`12. However, Google has had a substantial presence in Austin for nearly 14 years. As EcoFactor
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`notes, Google has leased significant square feet in office space and currently employs over 1,400
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`employees in Austin, with plans to expand its presence in Texas even further. Pl.’s Resp. at 9.
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`Because both districts have a significant interest in this case, the Court finds this factor
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`neutral.
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`iii. Familiarity of the Forum With the Law That will Govern the Case
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`
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`Both parties agree that this factor is neutral. Def.’s Mot. at 13; Pl.’s Resp. at 10. The
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`Court also agrees.
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`iv. Avoidance of Unnecessary Problems of Conflict of Laws or in the Application of
`Foreign Law
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`Both parties agree that this factor is neutral. Id. The Court also agrees.
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`IV. CONCLUSION
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`Having considered the Section 1404(a) factors, the Court finds that Google has not met
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`its significant burden to demonstrate that the NDCA is “clearly more convenient” than this
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`District. Therefore, the Court DENIES Google’s Motion to Transfer.
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`SIGNED this 16th day of April, 2021.
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`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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`12
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`EcoFactor, Inc.
`Exhibit 2012
`IPR2021-00054
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`Page 12 of 12
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