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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF TEXAS
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`HOUSTON DIVISION
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`.
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`CW1] NO. 4:20-cv-02652
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`JURY TRIAL DEMANDED
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`§
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`§ §
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`§
`§
`
`g
`g
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`GUI GLOBAL PRODUCTS, LTD. d/b/a
`GWEE
`
`Plaintiff,
`
`V-
`
`APPLE INC,
`Defendant.
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`DEFENDANT APPLE INC.’S MOTION TO
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`TRANSFER VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA
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`1
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`APPLE 1105
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`1
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`APPLE 1105
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`Case 4:20-cv-02652 Document 40 Filed on 11:03:20 in TXSD Page 2 of 24
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`TABLE OF CONTENTS
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`INTRODUCTION __________________________________________________________________________________________________ 1
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`II.
`
`STATEMENT OF FACTS ..................................................................................... 3
`
`A.
`
`B.
`
`Nature and Stage of the Proceedings .......................................................... 3
`
`Apple’s Relevant Witnesses and Documents Are Located in Northern
`California .................................................................................................... 4
`
`C.
`
`This Case Has Minimal Ties to the Southern District of Texas ................. 7
`
`III.
`
`LEGAL STANDARD ............................................................................................. 8
`
`THE NORTHERN DISTRICT OF CALIFORNIA IS CLEARLY THE MORE
`CONVENIENT VENUE ........................................................................................ 9
`
`A.
`
`The Private Interest Factors Weigh in Favor of Transfer ........................... 9
`
`1.
`
`2.
`
`3.
`
`4.
`
`Relative Ease of Access to Sources of Proof Weighs in Favor of
`Transfer ......................................................................................... 10
`
`Availability of Compulsory Process Strongly Weighs in Favor of
`Transfer ......................................................................................... 12
`
`Attendance of Willing Witnesses Strongly Weighs in Favor of
`Transfer ......................................................................................... 14
`
`All Other Practical Problems Weigh in Favor of Transfer or Are
`Neutral........................................................................................... 16
`
`B.
`
`The Public Interest Factors Weigh in Favor ofTransfer
`
`17
`
`1.
`
`2.
`
`3.
`
`Administrative Difficulties Flowing from Court Congestion Weigh
`in Favor of Transfer ...................................................................... 17
`
`Local Interests Strongly Weigh in Favor of Transfer ................... 18
`
`Familiarity with the Governing Law and Conflicts of Law Are
`Neutral ........................................................................................... 19
`
`V.
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`CONCLUSION ..................................................................................................... 19
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`i
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`2
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`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 3 of 24
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`In re Acer Am. (101319.,
`626 F.3d 1252 (Fed. Cir. 2010) .......................................................................................... 10, 14
`
`ACQISLLF 9. EMC Corp,
`67 F. Supp. 3d 769 (ED. Tex. 2014) ................................................................................. 18, 19
`
`In re Adobe Inc. ,
`
`No. 2020-126, 2020 WL 4308164 (Fed. Cir. Jul. 28, 2020) ...................................................... 9
`
`In re: Appie Inc,
`2020 WL 3249953 (Fed. Cir. 2020) ..................................................................................... 9, 14
`
`Anio-Drii, Inc. v. Nai’i Oiiweii Varco, LR,
`No. 6: 1500900091, 2016 WL 6909479 (WD. Tex. Jan. 28, 2016) ........................................... 9
`
`Davies Innovations Inc. v. Strum, Ruger 6% Co,
`No. 3:15-cv—282, 2016 WL 8114127 (SD. Tex. Jul. 31, 2016) .............................................. 13
`
`In re Genenlecn, Inc,
`
`566 F.3d 1338 (Fed. Cir. 2009) ........................................................................................ passim
`
`In re Googie Inc,
`2017 WL 977038 (Fed. Cir. Feb. 23, 2017) ............................................................................. 14
`
`In re Hoflinon-La Roche, Inc,
`587 F.3d 1333 (Fed. Cir. 2009) .................................................................................... 12, 13, 18
`
`In re HP Inc.,
`
`No. 2018-149, 2018 WL 4692486 (Fed. Cir. Sept. 25, 2018) ................................................... 9
`
`Kiibonrne v. Appie Inc,
`No. H-l7—3283, 2018 WL 3954864 (SD. Tex. Jul. 27, 2018) ........................................ passim
`
`In re Nintendo (0., Ltd,
`589 F.3d 1194 (Fed. Cir. 2009) ............................................................................................ 9, 19
`
`In re Rodmox, Ltd,
`
`720 F.3d 285 (5th Cir. 2013) ................................................................................................... 16
`
`Rosemond v. United Airlines, inc,
`
`N0. H-l3-2190, 2014 WL 1338690 (SD. Tex. Apr. 2, 2014) ................................................. 17
`
`ii
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`3
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`
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`Case 4:20-cv-02652 Document 40 Filed on 11103920 in TXSD Page 4 of 24
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`RSI Video Techs., Inc. v. Vacant Property Sea, LLC,
`2013 WL 5530619 (SD. Tex. Oct. 4, 2013) ............................................................................ 18
`
`In re Toyota Motor Corp,
`747 F.3d 1338 (Fed. Cir. 2014) .................................................................................................. 9
`
`In re TS Tech USA (.'()rp.,
`551 F.3d 1315 (Fed. Cir. 2008) ........................................................................................ 8, 9,19
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) ........................................................................................... 8, 9, 14
`
`In re VoMswagen 0fAm., Inc,
`545 F.3d 304 (5th Cir. 2008) ........................................................................................... passim
`
`Statutes
`
`28 U.S.C. § 1404 ................................................................................................................ 1, 2, 8,16
`
`Other Authorities
`
`Fed. R. Civ. P.45(c)(l)13
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`iii
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`4
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`Case 4:20-cv-02652 Document 40 Filed on 11103920 in TXSD Page 5 of 24
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`I.
`
`INTRODUCTION
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`Defendant Apple Inc. (“Apple”) respectfully requests, pursuant to 28 U.S.C_
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`§ 1404(a), that this case be transferred to the Northern District of California, because the
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`relevant witnesses and evidence overwhelmingly are located in the Northern District of
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`California, making it a clearly more convenient venue. Indeed, in Kilboume v. Apple,
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`this District analyzed facts nearly identical to those presented here and determined that
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`the Northern District of California was a more convenient venue.
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`Plaintiff GUI Global Products (“GUI“) filed this patent infringement case, alleging
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`that certain of Apple’s AirPods and Beats Powerbeats Pro products infringe four patents.
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`Apple is a California corporation that has maintained its headquarters and principal place
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`of business in Cupertino California, in the Northern District of California, since its
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`inception in 1976. The vast majority of Apple’s documents and witnesses related to the
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`development, design, engineering, and marketing of the accused products are located in
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`or near the Northern District of California. This fact should be given substantial weight
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`because, as the Federal Circuit has recognized, the bulk of the relevant documents and
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`witnesses in a patent case such as this one comes from the alleged infringer. This case
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`also presents additional reasons to transfer, including this District’s relatively greater
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`court congestion and the Northern District of California’s greater interest in the dispute.
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`By contrast, this case has no meaningful connection to this District, and GUI has
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`identified none. GUI alleges venue is proper in this District because Apple maintains
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`retail stores here. However, neither those retail stores nor their employees are involved in
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`5
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`the design, engineering, or other relevant aspects of the accused products. The Federal
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`Circuit has made clear that the mere presence of retail stores is insufficient to overcome
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`the great weight that must be attributed to the location at which the design, engineering,
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`and other more relevant decision-making and activities of the alleged infiinger
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`occurred—and hence where the majority of witnesses and documents relevant to a patent
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`case reside, as is the case hereifor to permit otherwise would vitiate the robust set of
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`factors that the Federal and Fifth Circuits require district courts to consider under
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`28 U.S.C. § 1404(a). And although GUI is based in Houston, GUI does not design,
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`engineer, or manufacture products allegedly embodying the asserted patents. GUI
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`therefore has substantially fewer relevant witnesses and documents than Apple.
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`With the lack of connection to this District apparent, GUI made clear during the
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`Court’s pre-motion conference that it intends to rely on Apple’s facility outside this
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`District, in Austin, to oppose transfer. As a preliminary matter, this District in Ki/boume
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`already rejected a similar attempt to rely on Apple’s presence in Austin, which is in the
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`Western District of Texas, because it is insufficient to maintain venue in this—the
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`Southern—Distri ct of Texas. Regardless, Apple has confirmed that none of the likely
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`witnesses and documents relevant to the products and facts at issue in this case are
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`located in Austin.
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`By any measure, the Northern District of California is a clearly more convenient
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`and appropriate venue for the likely witnesses and parties, and this case should be
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`transferred there in the interest ofjustice.
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`6
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`II.
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`STATEMENT OF FACTS
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`A.
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`Nature and Stage of the Proceedings
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`GUI filed this patent infringement suit against Apple on July 28, 2020.1 See
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`Compl., Dkt. l. GUI accuses Apple of infringing US. Patent Nos. 10,589,320;
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`10,562,077; 10,259,021, and 10,259,020 (collectively, the “Asserted Patents”). Id. 11 1.
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`GUI accuses Apple and Beats wireless headphone products of infringing these patents,
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`specifically identifying the AirPods, AirPods (2nd Gen), AirPods Pro, and Powerbeats
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`Pro products (collectively, the “Accused Products”). 1d. 1] 6. GUI accuses the physical
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`connection between earbuds and a case (allegedly through use of magnets), the activation
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`and deactivation of Bluetooth communications, and the ability to pause, play, or
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`otherwise control a remote device by tapping an earbud or placing the earbud in a user’s
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`ear. Id. W 18-31.
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`This case is in its very early stages. Apple filed an answer to GUI’s complaint on
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`October 20, 2020, only 14 days before the filing of this motion. Dkt. No. 32. The parties
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`have not yet conducted a Rule 26(f) conference; have not exchanged initial disclosures
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`under the Federal Rules; and have not exchanged initial infringement and invalidity
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`disclosures under the Local Patent Rules. The Court has not conducted an Initial Pretrial
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`and Scheduling Conference and has not entered a schedule (aside from that for briefing
`
`‘ GUI also filed suit against Samsung Electronics Co, Ltd. and two of its US.
`subsidiaries on July 27, 2020 in Civ. No. 4:20-cv-2624. Samsung also plans to file a
`motion to transfer its case to the Northern District of California. See Civ. No. 4:20-cv-
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`2624, Dkt. 35 at p. 8.
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`7
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`and discovery related specifically to the instant transfer motion). Discovery has not
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`commenced.
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`B.
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`Apple’s Relevant Witnesses and Documents Are Located in Northern
`California
`
`The accused activities are centered in the Northern District of California. Apple is
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`a California corporation headquartered in Cupertino, California, which is in the Northern
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`District of California. Ex. A (Declaration of Mark Rollins) 1] 3. Apple’s management,
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`primary research and development, and marketing facilities are located in or near Santa
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`Clara County, California, including cities such as Cupertino and Sunnyvale, all of which
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`are located in the Northern District of California. Id. As of November, 2020, Apple has
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`more than 35,000 employees who work in or near its Cupertino headquarters. Id.
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`Apple’s employees who are most knowledgeable about the design and
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`development, marketing, and financial matters relating to the products and functionalities
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`accused by GUI in this case are located in the Northern and Central Districts of
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`California. Id. W 7, 13. For example, based on the allegations in the Complaint, Apple’s
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`likely engineering witnesses include Rob Watson, Jeff Terlizzi, Jonathan Adams, and
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`Marco Pontil. These individuals work on and are responsible for various aspects of the
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`Accused Products, including the hardware components as well as the software and
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`firmware utilized to implement the accused features within the Accused Products. M. M
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`8-12. All of these individuals are located in the Northern District of California, except
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`Mr. Adams who is located in the Central District of California. Id. None are located in
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`the Southern District of Texas. 1d. The majority of their team members likewise are
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`8
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`located in the Northern and Central Districts of California. Id. None of them or their
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`team members is located in the Southern District of Texas. Id. Furthermore, none of
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`Apple’s likely engineering witnesses is located in or near Apple’s Austin campus or
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`anywhere else in Texas, and none of them has traveled to Austin or Texas generally for
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`their work on the Accused Products. Id.
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`Apple employees with knowledge of Apple’s prior art to GUI’s asserted patents,
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`and thus those with knowledge relevant to Apple’s invalidity defenses in this case, also
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`are located in the Northern District of California. Mr. Terlizzi is a Senior Director of
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`Systems Engineering for Audio Products in the Audio Electrical Engineering Group at
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`Apple. Id. 1i 9. Mr. Terlizzi worked on Apple’s AirPods products and their predecessor,
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`the Apple Bluetooth Headset product, which Apple sold publicly many years before the
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`filing and priority dates claimed in GUI’s asserted patents.
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`Id. W 9, 10. Mr. Terlizzi’s
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`primaiy workplace is in the Northern District of California. Id. The research, design,
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`and development associated with the Apple Bluetooth Headset product occurred in the
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`Northern District of California. Id. 1i 10. Neither Mr. Terlizzi, nor any member of his
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`team who worked on the Apple Bluetooth Headset products, is located in the Southern
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`District of Texas, in or near Apple’s Austin campus, or anywhere else in Texas. Id.
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`Further, GUI’s own patents reference additional Apple prior art, including the Apple
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`Smart Cover, of which most of the named inventors are located in California. See Ex. B
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`(Decl. of B. Elacqua), Ex. C (’020 Patent) at 20:14—19; Ex. D (’465 Patent).
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`Apple’s employees who are most knowledgeable about marketing of the Accused
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`Products, Linda Frager (a Senior Marketing Manager in the Home and Audio Worldwide
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`9
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`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 10 of 24
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`Product Marketing Group) and Jeff Bruksch (a Product Marketing Manager in the Beats
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`Group), are located in the Northern and Central Districts of California, respectively.
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`Ex. A, 11 14-16. None are located in the Southern District of Texas, in or near Apple’s
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`Austin campus, or anywhere else in Texas. Id. Apple’s employees who are most
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`knowledgeable about Apple’s patent licensing, including Jayna Whitt, are primarily
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`located in the Northern District of California. Id. 11 17. None are located in the Southern
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`District of Texas, in or near Apple’s Austin campus, or anywhere else in Texas. Id.
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`Apple’s employees who are most knowledgeable regarding the financials for the Accused
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`Products, including Mark Rollins, a Senior Finance Manager at Apple, are located in the
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`Northem District of California, and not in the Southern District of Texas. Id. 11 18.
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`Put simply, none of the likely Apple witnesses in this case are located in the
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`Southern District of Texas, in or near Apple’s Austin campus, or anywhere else in Texas.
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`Id.
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`1111 8-12, 14-18. Apple is not aware of any employees with relevant knowledge
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`conceming the claims asserted by GUI against Apple in this case, or any other aspect of
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`the subject matter of this litigation, who work in the Southern District of Texas. Id.
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`The same is true of relevant documents and things. The electronic records and
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`files relating to the accused functionalities are predominantly located in or near Cupertino
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`and Culver City, California. Id. 1111 7', 10, 13, 18. The design and development of the
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`relevant functionalities occurred predominantly in or near Cupertino and Culver City,
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`California. Id. 1111 8- 12. And the financial and marketing data relating to the accused
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`functionalities is located in Cupertino and Culver City, California. Id. llll 14-18. Apple
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`has not identified any relevant documents related to the claims asserted by GUI against
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`10
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`10
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`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 11 of 24
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`Apple in this case, or any other aspect of the subject matter of this litigation, that is
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`located in the Southern District of Texas, in or near Apple’s Austin campus, or anywhere
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`else in Texas. 101% 8-12, 14-18.
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`C.
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`This Case Has Minimal Ties to the Southern District of Texas
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`GUI is a Texas limited partnership having its purported principal place of business
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`in Houston, Texas. Compl. 1] 2. GUI does not design, engineer, or manufacture products
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`embodying the Asserted Patents. Ex. B; Ex. E (GUI Product Webpage). Nor does GUI
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`make, design, engineer, or manufacture any product similar to the Apple Accused
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`Products. Id. Rather, according to GUI’s website, GUI purports to make “Multi-
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`Functional Microfiber Cleaning Accessories.” Ex. B; Ex. F (GUI “About Gwee”
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`Webpage).
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`Mr. Walter Mayfield is the President of GUI and a named inventor of the Asselted
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`Patents. Mr. Mayfield is involved in a number of different businesses outside of GUI. In
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`fact, Mr. Mayfield is a member or director of over thirty business entities, in industries
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`including oil and gas, real estate, air travel and aviation, computer programming, and
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`medical care products. Ex. B; see generally Ex. G (Lexis Company Reports for Walter
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`G. Mayfield). A number of these businesses have associated entities or operating
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`locations in other states such as Oklahoma, Washington, Arkansas, Louisiana, Alabama,
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`Montana, and Maine. Id. As a part of these businesses, it appears that Mr. Mayfield’s
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`businesses own property in a number of different states. Id.
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`11
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`11
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`III.
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`LEGAL STANDARD
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`“For the convenience of parties and witnesses, in the interest ofj ustice, a district
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`court may transfer any civil action to any other district or division where it might have
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`been brought.” 28 U.S.C. § 1404(a). In analyzing a motion to transfer under § 1404(a),
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`the law of the regional circuit applies. In re TS Tech USA Corp, 551 F.3d 1315, 1319
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`(Fed. Cir. 2008).
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`Under section 1404(a), the moving party must first show that the claims “might
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`have been brought” in the proposed transferee district. In re Volkswagen of'A m., Inc,
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`545 F.3d 304, 312-13 (5th Cir. 2008) (“Volkswagen 11”). This first requirement is
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`certainly met given that Apple is a California corporation headquartered in Cupertino.
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`See Dkt. l, Compl at 1] 7; Ex. A 11 3. Second, the movant must show “good cause” by
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`demonstrating that the “transferee venue is clearly more convenient” than the transferor
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`district. Volkswagen 11 at 315. As shown below, that is the case here.
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`In evaluating convenience, the district court weighs both private and public
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`interest factors. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen
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`1”). The private factors include: “(1) the relative ease of access to sources of proof; (2)
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`the availability of compulsory process to secure the attendance of witnesses; (3) the cost
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`of attendance for willing witnesses; and (4) all other practical problems that make trial of
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`a case easy, expeditious and inexpensive.” Id. The public interest factors include: “(1)
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`the administrative difficulties flowing from court congestion; (2) the local interest in
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`having localized interests decided at home; (3) the familiarity of the forum with the law
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`12
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`12
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`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 13 of 24
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`that will govern the case; and (4) the avoidance of unnecessary problems of conflict of
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`laws of the application of foreign law.” Id.
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`The convenience of the witnesses is the most important factor in the transfer
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`analysis. In re: AppIe Inc, 2020 WL 3249953, at *2 (Fed. Cir. 2020); In re Genenrech,
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`Inc, 566 F.3d 1338, 1343 (Fed. Cir. 2009); Auto-Drill, Inc. v. Nar’I OIIweII Varco, I..P.,
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`N0. 6:150cv00091, 2016 WL 6909479, at *7 (W.D. Tex. Jan. 28, 2016). Moreover, “in a
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`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
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`grant a motion to transfer.” In re Nintendo Co, Ltd, 589 F.3d 1 194, 1 198 (Fed. Cir.
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`2009); see also, e.g., In re II‘oona Motor Corp, 747 F.3d 1338, 1341 (Fed. Cir. 2014); In
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`re Genemeeh, 566 F.3d at 1348;1n re 'I'S Tech USA Corp, 551 F.3d. 1315, 1322 (Fed.
`
`Cir. 2008); In re HP Inc, No. 2018-149, 2018 WL 4692486, at *3 (Fed. Cir. Sept. 25,
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`2018); In re Adobe Inc, No. 2020-126, 2020 WL 4308164 (Fed. Cir. Jul. 28, 2020).2
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`IV.
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`THE NORTHERN DISTRICT OF CALIFORNIA IS CLEARLY THE
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`MORE CONVENIENT VENUE
`
`A.
`
`The Private Interest Factors Weigh in Favor of Transfer
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`The private interest factors strongly favor transfer because the overwhelming
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`majority of witnesses and evidence in this case are located in the Northern District of
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`California.
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`2 The plaintiff’s choice of venue is not a distinct factor in the analysis. VoIkswagen II,
`545 F.3d at 314-15. Nor is the location of counsel. Volkswagen I, 371 F.3d at 206.
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`13
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`13
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`1.
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`Relative Ease of Access to Sources of Proof Weighs in Favor of
`Transfer
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`“[T]he Fifih Circuit clarified that despite technological advances that make the
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`physical location of documents less significant, the location of sources of proof remains a
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`“meaningful factor in the analysis. ’" Volkswagen H, 545 F.3d at 316; see also Kflboume
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`v. Appie Inc., No. H-17-3283, 2018 WL 3954864, at *2 (SD. Tex. Jul. 27, 2018). “The
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`Federal Circuit has observed that ‘[i]n patent infringement cases, the bulk of the relevant
`
`evidence usually comes from the accused infringer,’ and therefore the location of the
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`defendant’s documents tends to be the more convenient venue.” In re Geneatech, Inc,
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`566 F.3d 1338, 1345 (Fed. Cir. 2009). Additionally, “[i]n determining the east of access
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`to sources of proof, the Court will look to the location where the allegedly infringing
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`products were research, designed, developed and tested.” In re Acer Am. Corp, 626 F.3d
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`1252, 1256 (Fed. Cir. 2010). Where, as here, the accused products were primarily
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`researched, designed, developed and tested in the Northern District of California, and so
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`the primary documents and witnesses are located there, this factor weighs in favor of
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`transfer. Kilbourne, 2018 WL 3954864, at *2-3.
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`Apple’s headquarters is located in the Northern District of California, most of the
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`employees who work on or have worked on the Accused Products are in the Northern
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`District of Califomia, and documents relating to the Accused Products are in the Northern
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`District of California. Ex. A 111] 3, 7, 13. The research, design, development, and testing
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`of the Accused Products takes place in the Northern District of California and Central
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`District of California. Ex. A 111] 7-12. Additionally, employees who worked on and
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`10
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`14
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`14
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`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 15 of 24
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`documents relating to the Apple Bluetooth Headset product, a predecessor to the Accused
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`Products and prior art to GUI’s patents, are located in the Northern District of California,
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`where the design and development of that product took place. Ex. A 1] 10. To the extent
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`there are additional employees knowledgeable about and documents relating to the
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`Accused Products located outside of the Northern District of California, they are located
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`in the Central District of California, which is significantly more accessible from the
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`Northern District of California than from the Southern District of Texas. Ex. A ll 7-12.
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`In addition, Apple’s likely witnesses and documents concerning the marketing, sales and
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`financial information for the Accused Products are located in the Northern District of
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`California. Ex. A W 13-16, 18. The same is true of Apple’s licensing functions. Id. at
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`17. As such, the overwhelming majority of the sources of proof regarding the Accused
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`Products are in the Northern District of Califomia.
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`Conversely, there are no unique, relevant sources of proof in the Southern District
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`of Texas. First, GUI has limited evidence in the Southern District of Texas because GUI
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`does not offer a competing product which embodies the patents. Second, there are no
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`relevant Apple employees in the Southern District of Texas. Id. 1H] 8—12, 14—18. Third,
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`Apple is not aware of any third-party witnesses who reside in the Southern District of
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`Texas. Given that there are numerous sources of proof in the Northern District of
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`California and none in the Southern District of Texas, this factor clearly favors transfer.
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`The Court addressed nearly identical circumstances in Kilbourne and determined
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`this factor weighed in favor of transfer. See Kflbourne, 2018 WL, at *3. In Kilboume, as
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`is the case here, the Apple employees and documents relating to the accused products
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`11
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`15
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`15
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`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 16 of 24
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`were located in the Northern District of California. Id. Accordingly, in spite of the
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`plaintiff‘s allegation that his documents were primarily in Texas, the Court held that the
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`“evidence [that was] highly relevant to the infringement analysis [was] entirely in the
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`Northern District of California,” and “[a]s a result, the ease of access to proof factor
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`weighs in favor of transfer. Id.
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`The same is true here. The relevant documentary evidence as well as the relevant
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`witnesses are located in or near the Northern District of California.
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`In fact, documentary
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`evidence from GUI will be of less importance here than in Kilbourne.
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`In Kilbourne, the
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`plaintiff alleged that he had evidence relating to his own allegedly embodying product
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`that was located in the Southern District of Texas. Id. at 6-7. GUI makes no such
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`allegation here. (Regardless, even if GUI did make such an allegation, Kilbourne held
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`that it is of little relevance and does not outweigh the predominance of evidence in
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`Northern California. Id.) The plaintiff in KiIbourne also attempted to point to Apple’s
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`campus in Austin, in the Western District of Texas, as a potential source of relevant
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`documents, just as GUI indicated at the pre-motion conference that it intends to argue in
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`this case. Id. The court found this argument unavailing and failed to overcome the
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`predominance of evidence in the Northern District of California. Id. This Court likewise
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`should reject any such argument from GUI here, for the same reasons.
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`2.
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`Availability of Compulsory Process Strongly Weighs in Favor of
`Transfer
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`Transfer is favored when a transferee forum has absolute subpoena power over a
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`greater number of witnesses. In re Hqfiman-La Roche, Inc, 587 F.3d 1333, 1337-38
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`Case 4:20-CV-02652 Document 40 Filed on 11103120 in TXSD Page 17 of 24
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`(Fed. Cir. 2009); Genentech, 566 F.3d at 1345. Both the named party’s witnesses and
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`any third-party witnesses are relevant to weighing this factor. Davies Innovations Inc. v.
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`Strum, Ruger & (70., No. 3:15-cv-282, 2016 WL 8114127, at *4 (SD. Tex. Jul. 31, 2016)
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`(“[T]he Federal Circuit evaluates the availability of compulsory process for unwilling
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`witnesses without regard to their status as employees of a party”). A venue that has
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`“absolute subpoena power for both deposition and trial” is favored over one that does not.
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`VoIkswagen II, 545 F.3d at 316. “‘Absolute subpoena power is subpoena power’ for both
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`depositions and trial.” In re Hoflinann-La Roche, 587 F. 3d 133 3, 1338 (Fed. Cir. 2009).
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`As set forth above in Section 11.8., most of the relevant Apple employees are
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`located in the Northern District of California. Absolute subpoena power over these
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`witnesses is therefore available in the Northern District of California. Fed. R. Civ. P.
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`45(c)(1). Apple is not aware of a single Apple or third-party witness who would be
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`within the Southern District of Texas’s absolute subpoena power. This factor is
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`particularly important here, as GUI has not agreed to take 30(b)(6) depositions at the
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`noticed parties“ principal place of business. GUI GIobaI Products, Ltd. v. Samsnng ISIecs
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`Co, Ltd, No. 4:20—cv—2624, Dkt. 35 at 4 (SD. Tex. Oct. 6, 2020). The only potentially
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`relevant witness over whom this Court has absolute subpoena power is Mr. Mayfield
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`who, as discussed further below, is likely to be a willing witness. Therefore, this factor
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`weighs strongly in favor of transfer. Kilbourne, 2018 WL 3954864 at *4 (holding this
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`factor weighed heavily in favor of transfer where, “[W]ith the exception of Plaintiff, who
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`is not likely to require the compulsory process, all or the vast majority of key witnesses in
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`this case are outside the Court’s subpoena power.”).
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`Case 4:20-cv-02652 Document 40 Filed on 11703720 in TXSD Page 18 of 24
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`3.
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`Attendance of Willing Witnesses Strongly Weighs in Favor of
`Transfer
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`The convenience for willing witnesses is the single most important factor in the
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`transfer analysis. See, Apple Inc, 2020 WL 3249953, at *2; In re Google Inc, 2017 WL
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`977038, at *3 (Fed. Cir. Feb. 23, 2017); Genentech, 566 F.3d at 1342. As noted above in
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`Section 11.3., nearly all of the likely Apple witnesses are based in the Northern District of
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`California. See Ex. A M 8-12, 14-18. These witnesses are a short car ride from the court
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`house in the Northern District of California (6g, 15-30 minutes), but more than 1,500
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`miles and a lengthy plane ride, plus a rental car drive to Texas. Ex. B, Ex. H (Google
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`Maps Directions from Apple Campus to San Jose Federal Courthouse); Ex. 1 (Google
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`Maps Directions from Apple Campus to Houston Federal Courthouse).
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`If this case remains in Texas, the Apple witnesses would need to spend days away
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`from home and work — as opposed to several hours if the trial takes place in the Northern
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`District of California. This travel burden is significant and has been cited often as a key
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`reason why transfer is appropriate. E.g., Volkswagen I1, 545 F.3d at 317 (“Witnesses not
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`only suffer monetary costs, but also the personal costs associated with being away from
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`work, family and community"). This length of travel also imposes additional burdens
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`beyond travel time, such as meal and lodging expenses. Volkswagen 1, 371 F.3d at 204-
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`05; see also In re Acer America Corp, 626 F.3d 1252, 1255 (2010) (noting that in
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`requiring party employees to travel for trial the parties would likely incur significant
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`expenses for airfare, meals, lodging, as well as losses in productivity from time spent
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`away from work). These inconveniences are particularly concerning in the COVlD-19
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`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 19 of 24
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`pandemic, which heightens the burden and risk of travel. See EX. B; Ex. J (CDC
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`Coronavirus Travel Guidance). For all of these reasons, it would be clearly more
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`convenient for the witnesses based in the Northern and Central Districts of California to
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`attend trial in the Northern District of California. Volkswagen H, 545 F.3d at 317
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`(recognizing the “obvious conclusion” that “it is more convenient for witnesses to testify
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`at home”).
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`On the other hand, GUI is likely to have only one party witness that would need to
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`attend proceedings in the Northern District of California: its president, Mr. Walter
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`Mayfreld. Mr. Mayfield is also an inventor named on the Asserted Patents. Ex. B; Ex. C.
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`The court in Kilboume, when faced with nearly identical circumstances, held that this
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`factor nonetheless weighs in favor of transfer. Kilboume, 2018 WL 3954864 at *4. The
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`court found, while “it is beyond dispute that the relative cost to [plaintiff] of atten