Case 4:20-CV-02652 Document 40 Filed on 11f03f20 in TXSD Page 1 Of 24
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF TEXAS
`
`HOUSTON DIVISION
`
`.
`.
`CW1] NO. 4:20-cv-02652
`
`JURY TRIAL DEMANDED
`
`§
`
`§ §
`
`§
`§
`
`g
`g
`
`GUI GLOBAL PRODUCTS, LTD. d/b/a
`GWEE
`
`Plaintiff,
`
`V-
`
`APPLE INC,
`Defendant.
`
`DEFENDANT APPLE INC.’S MOTION TO
`
`TRANSFER VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA
`
`1
`
`APPLE 1105
`
`1
`
`APPLE 1105
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11:03:20 in TXSD Page 2 of 24
`
`TABLE OF CONTENTS
`
`INTRODUCTION __________________________________________________________________________________________________ 1
`
`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.
`
`CONCLUSION ..................................................................................................... 19
`
`i
`
`2
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 3 of 24
`
`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
`
`3
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11103920 in TXSD Page 4 of 24
`
`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
`
`iii
`
`4
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11103920 in TXSD Page 5 of 24
`
`I.
`
`INTRODUCTION
`
`Defendant Apple Inc. (“Apple”) respectfully requests, pursuant to 28 U.S.C_
`
`§ 1404(a), that this case be transferred to the Northern District of California, because the
`
`relevant witnesses and evidence overwhelmingly are located in the Northern District of
`
`California, making it a clearly more convenient venue. Indeed, in Kilboume v. Apple,
`
`this District analyzed facts nearly identical to those presented here and determined that
`
`the Northern District of California was a more convenient venue.
`
`Plaintiff GUI Global Products (“GUI“) filed this patent infringement case, alleging
`
`that certain of Apple’s AirPods and Beats Powerbeats Pro products infringe four patents.
`
`Apple is a California corporation that has maintained its headquarters and principal place
`
`of business in Cupertino California, in the Northern District of California, since its
`
`inception in 1976. The vast majority of Apple’s documents and witnesses related to the
`
`development, design, engineering, and marketing of the accused products are located in
`
`or near the Northern District of California. This fact should be given substantial weight
`
`because, as the Federal Circuit has recognized, the bulk of the relevant documents and
`
`witnesses in a patent case such as this one comes from the alleged infringer. This case
`
`also presents additional reasons to transfer, including this District’s relatively greater
`
`court congestion and the Northern District of California’s greater interest in the dispute.
`
`By contrast, this case has no meaningful connection to this District, and GUI has
`
`identified none. GUI alleges venue is proper in this District because Apple maintains
`
`retail stores here. However, neither those retail stores nor their employees are involved in
`
`5
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11:03:20 in TXSD Page 6 of 24
`
`the design, engineering, or other relevant aspects of the accused products. The Federal
`
`Circuit has made clear that the mere presence of retail stores is insufficient to overcome
`
`the great weight that must be attributed to the location at which the design, engineering,
`
`and other more relevant decision-making and activities of the alleged infiinger
`
`occurred—and hence where the majority of witnesses and documents relevant to a patent
`
`case reside, as is the case hereifor to permit otherwise would vitiate the robust set of
`
`factors that the Federal and Fifth Circuits require district courts to consider under
`
`28 U.S.C. § 1404(a). And although GUI is based in Houston, GUI does not design,
`
`engineer, or manufacture products allegedly embodying the asserted patents. GUI
`
`therefore has substantially fewer relevant witnesses and documents than Apple.
`
`With the lack of connection to this District apparent, GUI made clear during the
`
`Court’s pre-motion conference that it intends to rely on Apple’s facility outside this
`
`District, in Austin, to oppose transfer. As a preliminary matter, this District in Ki/boume
`
`already rejected a similar attempt to rely on Apple’s presence in Austin, which is in the
`
`Western District of Texas, because it is insufficient to maintain venue in this—the
`
`Southern—Distri ct of Texas. Regardless, Apple has confirmed that none of the likely
`
`witnesses and documents relevant to the products and facts at issue in this case are
`
`located in Austin.
`
`By any measure, the Northern District of California is a clearly more convenient
`
`and appropriate venue for the likely witnesses and parties, and this case should be
`
`transferred there in the interest ofjustice.
`
`6
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 7 of 24
`
`II.
`
`STATEMENT OF FACTS
`
`A.
`
`Nature and Stage of the Proceedings
`
`GUI filed this patent infringement suit against Apple on July 28, 2020.1 See
`
`Compl., Dkt. l. GUI accuses Apple of infringing US. Patent Nos. 10,589,320;
`
`10,562,077; 10,259,021, and 10,259,020 (collectively, the “Asserted Patents”). Id. 11 1.
`
`GUI accuses Apple and Beats wireless headphone products of infringing these patents,
`
`specifically identifying the AirPods, AirPods (2nd Gen), AirPods Pro, and Powerbeats
`
`Pro products (collectively, the “Accused Products”). 1d. 1] 6. GUI accuses the physical
`
`connection between earbuds and a case (allegedly through use of magnets), the activation
`
`and deactivation of Bluetooth communications, and the ability to pause, play, or
`
`otherwise control a remote device by tapping an earbud or placing the earbud in a user’s
`
`ear. Id. W 18-31.
`
`This case is in its very early stages. Apple filed an answer to GUI’s complaint on
`
`October 20, 2020, only 14 days before the filing of this motion. Dkt. No. 32. The parties
`
`have not yet conducted a Rule 26(f) conference; have not exchanged initial disclosures
`
`under the Federal Rules; and have not exchanged initial infringement and invalidity
`
`disclosures under the Local Patent Rules. The Court has not conducted an Initial Pretrial
`
`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-
`
`2624, Dkt. 35 at p. 8.
`
`7
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11:03:20 in TXSD Page 8 of 24
`
`and discovery related specifically to the instant transfer motion). Discovery has not
`
`commenced.
`
`B.
`
`Apple’s Relevant Witnesses and Documents Are Located in Northern
`California
`
`The accused activities are centered in the Northern District of California. Apple is
`
`a California corporation headquartered in Cupertino, California, which is in the Northern
`
`District of California. Ex. A (Declaration of Mark Rollins) 1] 3. Apple’s management,
`
`primary research and development, and marketing facilities are located in or near Santa
`
`Clara County, California, including cities such as Cupertino and Sunnyvale, all of which
`
`are located in the Northern District of California. Id. As of November, 2020, Apple has
`
`more than 35,000 employees who work in or near its Cupertino headquarters. Id.
`
`Apple’s employees who are most knowledgeable about the design and
`
`development, marketing, and financial matters relating to the products and functionalities
`
`accused by GUI in this case are located in the Northern and Central Districts of
`
`California. Id. W 7, 13. For example, based on the allegations in the Complaint, Apple’s
`
`likely engineering witnesses include Rob Watson, Jeff Terlizzi, Jonathan Adams, and
`
`Marco Pontil. These individuals work on and are responsible for various aspects of the
`
`Accused Products, including the hardware components as well as the software and
`
`firmware utilized to implement the accused features within the Accused Products. M. M
`
`8-12. All of these individuals are located in the Northern District of California, except
`
`Mr. Adams who is located in the Central District of California. Id. None are located in
`
`the Southern District of Texas. 1d. The majority of their team members likewise are
`
`8
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11:03:20 in TXSD Page 9 of 24
`
`located in the Northern and Central Districts of California. Id. None of them or their
`
`team members is located in the Southern District of Texas. Id. Furthermore, none of
`
`Apple’s likely engineering witnesses is located in or near Apple’s Austin campus or
`
`anywhere else in Texas, and none of them has traveled to Austin or Texas generally for
`
`their work on the Accused Products. Id.
`
`Apple employees with knowledge of Apple’s prior art to GUI’s asserted patents,
`
`and thus those with knowledge relevant to Apple’s invalidity defenses in this case, also
`
`are located in the Northern District of California. Mr. Terlizzi is a Senior Director of
`
`Systems Engineering for Audio Products in the Audio Electrical Engineering Group at
`
`Apple. Id. 1i 9. Mr. Terlizzi worked on Apple’s AirPods products and their predecessor,
`
`the Apple Bluetooth Headset product, which Apple sold publicly many years before the
`
`filing and priority dates claimed in GUI’s asserted patents.
`
`Id. W 9, 10. Mr. Terlizzi’s
`
`primaiy workplace is in the Northern District of California. Id. The research, design,
`
`and development associated with the Apple Bluetooth Headset product occurred in the
`
`Northern District of California. Id. 1i 10. Neither Mr. Terlizzi, nor any member of his
`
`team who worked on the Apple Bluetooth Headset products, is located in the Southern
`
`District of Texas, in or near Apple’s Austin campus, or anywhere else in Texas. Id.
`
`Further, GUI’s own patents reference additional Apple prior art, including the Apple
`
`Smart Cover, of which most of the named inventors are located in California. See Ex. B
`
`(Decl. of B. Elacqua), Ex. C (’020 Patent) at 20:14—19; Ex. D (’465 Patent).
`
`Apple’s employees who are most knowledgeable about marketing of the Accused
`
`Products, Linda Frager (a Senior Marketing Manager in the Home and Audio Worldwide
`
`9
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 10 of 24
`
`Product Marketing Group) and Jeff Bruksch (a Product Marketing Manager in the Beats
`
`Group), are located in the Northern and Central Districts of California, respectively.
`
`Ex. A, 11 14-16. None are located in the Southern District of Texas, in or near Apple’s
`
`Austin campus, or anywhere else in Texas. Id. Apple’s employees who are most
`
`knowledgeable about Apple’s patent licensing, including Jayna Whitt, are primarily
`
`located in the Northern District of California. Id. 11 17. None are located in the Southern
`
`District of Texas, in or near Apple’s Austin campus, or anywhere else in Texas. Id.
`
`Apple’s employees who are most knowledgeable regarding the financials for the Accused
`
`Products, including Mark Rollins, a Senior Finance Manager at Apple, are located in the
`
`Northem District of California, and not in the Southern District of Texas. Id. 11 18.
`
`Put simply, none of the likely Apple witnesses in this case are located in the
`
`Southern District of Texas, in or near Apple’s Austin campus, or anywhere else in Texas.
`
`Id.
`
`1111 8-12, 14-18. Apple is not aware of any employees with relevant knowledge
`
`conceming the claims asserted by GUI against Apple in this case, or any other aspect of
`
`the subject matter of this litigation, who work in the Southern District of Texas. Id.
`
`The same is true of relevant documents and things. The electronic records and
`
`files relating to the accused functionalities are predominantly located in or near Cupertino
`
`and Culver City, California. Id. 1111 7', 10, 13, 18. The design and development of the
`
`relevant functionalities occurred predominantly in or near Cupertino and Culver City,
`
`California. Id. 1111 8- 12. And the financial and marketing data relating to the accused
`
`functionalities is located in Cupertino and Culver City, California. Id. llll 14-18. Apple
`
`has not identified any relevant documents related to the claims asserted by GUI against
`
`10
`
`10
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 11 of 24
`
`Apple in this case, or any other aspect of the subject matter of this litigation, that is
`
`located in the Southern District of Texas, in or near Apple’s Austin campus, or anywhere
`
`else in Texas. 101% 8-12, 14-18.
`
`C.
`
`This Case Has Minimal Ties to the Southern District of Texas
`
`GUI is a Texas limited partnership having its purported principal place of business
`
`in Houston, Texas. Compl. 1] 2. GUI does not design, engineer, or manufacture products
`
`embodying the Asserted Patents. Ex. B; Ex. E (GUI Product Webpage). Nor does GUI
`
`make, design, engineer, or manufacture any product similar to the Apple Accused
`
`Products. Id. Rather, according to GUI’s website, GUI purports to make “Multi-
`
`Functional Microfiber Cleaning Accessories.” Ex. B; Ex. F (GUI “About Gwee”
`
`Webpage).
`
`Mr. Walter Mayfield is the President of GUI and a named inventor of the Asselted
`
`Patents. Mr. Mayfield is involved in a number of different businesses outside of GUI. In
`
`fact, Mr. Mayfield is a member or director of over thirty business entities, in industries
`
`including oil and gas, real estate, air travel and aviation, computer programming, and
`
`medical care products. Ex. B; see generally Ex. G (Lexis Company Reports for Walter
`
`G. Mayfield). A number of these businesses have associated entities or operating
`
`locations in other states such as Oklahoma, Washington, Arkansas, Louisiana, Alabama,
`
`Montana, and Maine. Id. As a part of these businesses, it appears that Mr. Mayfield’s
`
`businesses own property in a number of different states. Id.
`
`11
`
`11
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 12 of 24
`
`III.
`
`LEGAL STANDARD
`
`“For the convenience of parties and witnesses, in the interest ofj ustice, a district
`
`court may transfer any civil action to any other district or division where it might have
`
`been brought.” 28 U.S.C. § 1404(a). In analyzing a motion to transfer under § 1404(a),
`
`the law of the regional circuit applies. In re TS Tech USA Corp, 551 F.3d 1315, 1319
`
`(Fed. Cir. 2008).
`
`Under section 1404(a), the moving party must first show that the claims “might
`
`have been brought” in the proposed transferee district. In re Volkswagen of'A m., Inc,
`
`545 F.3d 304, 312-13 (5th Cir. 2008) (“Volkswagen 11”). This first requirement is
`
`certainly met given that Apple is a California corporation headquartered in Cupertino.
`
`See Dkt. l, Compl at 1] 7; Ex. A 11 3. Second, the movant must show “good cause” by
`
`demonstrating that the “transferee venue is clearly more convenient” than the transferor
`
`district. Volkswagen 11 at 315. As shown below, that is the case here.
`
`In evaluating convenience, the district court weighs both private and public
`
`interest factors. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen
`
`1”). The private factors include: “(1) the relative ease of access to sources of proof; (2)
`
`the availability of compulsory process to secure the attendance of witnesses; (3) the cost
`
`of attendance for willing witnesses; and (4) all other practical problems that make trial of
`
`a case easy, expeditious and inexpensive.” Id. The public interest factors include: “(1)
`
`the administrative difficulties flowing from court congestion; (2) the local interest in
`
`having localized interests decided at home; (3) the familiarity of the forum with the law
`
`12
`
`12
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 13 of 24
`
`that will govern the case; and (4) the avoidance of unnecessary problems of conflict of
`
`laws of the application of foreign law.” Id.
`
`The convenience of the witnesses is the most important factor in the transfer
`
`analysis. In re: AppIe Inc, 2020 WL 3249953, at *2 (Fed. Cir. 2020); In re Genenrech,
`
`Inc, 566 F.3d 1338, 1343 (Fed. Cir. 2009); Auto-Drill, Inc. v. Nar’I OIIweII Varco, I..P.,
`
`N0. 6:150cv00091, 2016 WL 6909479, at *7 (W.D. Tex. Jan. 28, 2016). Moreover, “in a
`
`case featuring most witnesses and evidence closer to the transferee venue With few or no
`
`convenience factors favoring the venue chosen by the plaintiff, the trial court should
`
`grant a motion to transfer.” In re Nintendo Co, Ltd, 589 F.3d 1 194, 1 198 (Fed. Cir.
`
`2009); see also, e.g., In re II‘oona Motor Corp, 747 F.3d 1338, 1341 (Fed. Cir. 2014); In
`
`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,
`
`2018); In re Adobe Inc, No. 2020-126, 2020 WL 4308164 (Fed. Cir. Jul. 28, 2020).2
`
`IV.
`
`THE NORTHERN DISTRICT OF CALIFORNIA IS CLEARLY THE
`
`MORE CONVENIENT VENUE
`
`A.
`
`The Private Interest Factors Weigh in Favor of Transfer
`
`The private interest factors strongly favor transfer because the overwhelming
`
`majority of witnesses and evidence in this case are located in the Northern District of
`
`California.
`
`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.
`
`13
`
`13
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 14 of 24
`
`1.
`
`Relative Ease of Access to Sources of Proof Weighs in Favor of
`Transfer
`
`“[T]he Fifih Circuit clarified that despite technological advances that make the
`
`physical location of documents less significant, the location of sources of proof remains a
`
`“meaningful factor in the analysis. ’" Volkswagen H, 545 F.3d at 316; see also Kflboume
`
`v. Appie Inc., No. H-17-3283, 2018 WL 3954864, at *2 (SD. Tex. Jul. 27, 2018). “The
`
`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
`
`defendant’s documents tends to be the more convenient venue.” In re Geneatech, Inc,
`
`566 F.3d 1338, 1345 (Fed. Cir. 2009). Additionally, “[i]n determining the east of access
`
`to sources of proof, the Court will look to the location where the allegedly infringing
`
`products were research, designed, developed and tested.” In re Acer Am. Corp, 626 F.3d
`
`1252, 1256 (Fed. Cir. 2010). Where, as here, the accused products were primarily
`
`researched, designed, developed and tested in the Northern District of California, and so
`
`the primary documents and witnesses are located there, this factor weighs in favor of
`
`transfer. Kilbourne, 2018 WL 3954864, at *2-3.
`
`Apple’s headquarters is located in the Northern District of California, most of the
`
`employees who work on or have worked on the Accused Products are in the Northern
`
`District of Califomia, and documents relating to the Accused Products are in the Northern
`
`District of California. Ex. A 111] 3, 7, 13. The research, design, development, and testing
`
`of the Accused Products takes place in the Northern District of California and Central
`
`District of California. Ex. A 111] 7-12. Additionally, employees who worked on and
`
`10
`
`14
`
`14
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 15 of 24
`
`documents relating to the Apple Bluetooth Headset product, a predecessor to the Accused
`
`Products and prior art to GUI’s patents, are located in the Northern District of California,
`
`where the design and development of that product took place. Ex. A 1] 10. To the extent
`
`there are additional employees knowledgeable about and documents relating to the
`
`Accused Products located outside of the Northern District of California, they are located
`
`in the Central District of California, which is significantly more accessible from the
`
`Northern District of California than from the Southern District of Texas. Ex. A ll 7-12.
`
`In addition, Apple’s likely witnesses and documents concerning the marketing, sales and
`
`financial information for the Accused Products are located in the Northern District of
`
`California. Ex. A W 13-16, 18. The same is true of Apple’s licensing functions. Id. at
`
`17. As such, the overwhelming majority of the sources of proof regarding the Accused
`
`Products are in the Northern District of Califomia.
`
`Conversely, there are no unique, relevant sources of proof in the Southern District
`
`of Texas. First, GUI has limited evidence in the Southern District of Texas because GUI
`
`does not offer a competing product which embodies the patents. Second, there are no
`
`relevant Apple employees in the Southern District of Texas. Id. 1H] 8—12, 14—18. Third,
`
`Apple is not aware of any third-party witnesses who reside in the Southern District of
`
`Texas. Given that there are numerous sources of proof in the Northern District of
`
`California and none in the Southern District of Texas, this factor clearly favors transfer.
`
`The Court addressed nearly identical circumstances in Kilbourne and determined
`
`this factor weighed in favor of transfer. See Kflbourne, 2018 WL, at *3. In Kilboume, as
`
`is the case here, the Apple employees and documents relating to the accused products
`
`11
`
`15
`
`15
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 16 of 24
`
`were located in the Northern District of California. Id. Accordingly, in spite of the
`
`plaintiff‘s allegation that his documents were primarily in Texas, the Court held that the
`
`“evidence [that was] highly relevant to the infringement analysis [was] entirely in the
`
`Northern District of California,” and “[a]s a result, the ease of access to proof factor
`
`weighs in favor of transfer. Id.
`
`The same is true here. The relevant documentary evidence as well as the relevant
`
`witnesses are located in or near the Northern District of California.
`
`In fact, documentary
`
`evidence from GUI will be of less importance here than in Kilbourne.
`
`In Kilbourne, the
`
`plaintiff alleged that he had evidence relating to his own allegedly embodying product
`
`that was located in the Southern District of Texas. Id. at 6-7. GUI makes no such
`
`allegation here. (Regardless, even if GUI did make such an allegation, Kilbourne held
`
`that it is of little relevance and does not outweigh the predominance of evidence in
`
`Northern California. Id.) The plaintiff in KiIbourne also attempted to point to Apple’s
`
`campus in Austin, in the Western District of Texas, as a potential source of relevant
`
`documents, just as GUI indicated at the pre-motion conference that it intends to argue in
`
`this case. Id. The court found this argument unavailing and failed to overcome the
`
`predominance of evidence in the Northern District of California. Id. This Court likewise
`
`should reject any such argument from GUI here, for the same reasons.
`
`2.
`
`Availability of Compulsory Process Strongly Weighs in Favor of
`Transfer
`
`Transfer is favored when a transferee forum has absolute subpoena power over a
`
`greater number of witnesses. In re Hqfiman-La Roche, Inc, 587 F.3d 1333, 1337-38
`
`12
`
`16
`
`16
`
`

`

`Case 4:20-CV-02652 Document 40 Filed on 11103120 in TXSD Page 17 of 24
`
`(Fed. Cir. 2009); Genentech, 566 F.3d at 1345. Both the named party’s witnesses and
`
`any third-party witnesses are relevant to weighing this factor. Davies Innovations Inc. v.
`
`Strum, Ruger & (70., No. 3:15-cv-282, 2016 WL 8114127, at *4 (SD. Tex. Jul. 31, 2016)
`
`(“[T]he Federal Circuit evaluates the availability of compulsory process for unwilling
`
`witnesses without regard to their status as employees of a party”). A venue that has
`
`“absolute subpoena power for both deposition and trial” is favored over one that does not.
`
`VoIkswagen II, 545 F.3d at 316. “‘Absolute subpoena power is subpoena power’ for both
`
`depositions and trial.” In re Hoflinann-La Roche, 587 F. 3d 133 3, 1338 (Fed. Cir. 2009).
`
`As set forth above in Section 11.8., most of the relevant Apple employees are
`
`located in the Northern District of California. Absolute subpoena power over these
`
`witnesses is therefore available in the Northern District of California. Fed. R. Civ. P.
`
`45(c)(1). Apple is not aware of a single Apple or third-party witness who would be
`
`within the Southern District of Texas’s absolute subpoena power. This factor is
`
`particularly important here, as GUI has not agreed to take 30(b)(6) depositions at the
`
`noticed parties“ principal place of business. GUI GIobaI Products, Ltd. v. Samsnng ISIecs
`
`Co, Ltd, No. 4:20—cv—2624, Dkt. 35 at 4 (SD. Tex. Oct. 6, 2020). The only potentially
`
`relevant witness over whom this Court has absolute subpoena power is Mr. Mayfield
`
`who, as discussed further below, is likely to be a willing witness. Therefore, this factor
`
`weighs strongly in favor of transfer. Kilbourne, 2018 WL 3954864 at *4 (holding this
`
`factor weighed heavily in favor of transfer where, “[W]ith the exception of Plaintiff, who
`
`is not likely to require the compulsory process, all or the vast majority of key witnesses in
`
`this case are outside the Court’s subpoena power.”).
`
`13
`
`17
`
`17
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11703720 in TXSD Page 18 of 24
`
`3.
`
`Attendance of Willing Witnesses Strongly Weighs in Favor of
`Transfer
`
`The convenience for willing witnesses is the single most important factor in the
`
`transfer analysis. See, Apple Inc, 2020 WL 3249953, at *2; In re Google Inc, 2017 WL
`
`977038, at *3 (Fed. Cir. Feb. 23, 2017); Genentech, 566 F.3d at 1342. As noted above in
`
`Section 11.3., nearly all of the likely Apple witnesses are based in the Northern District of
`
`California. See Ex. A M 8-12, 14-18. These witnesses are a short car ride from the court
`
`house in the Northern District of California (6g, 15-30 minutes), but more than 1,500
`
`miles and a lengthy plane ride, plus a rental car drive to Texas. Ex. B, Ex. H (Google
`
`Maps Directions from Apple Campus to San Jose Federal Courthouse); Ex. 1 (Google
`
`Maps Directions from Apple Campus to Houston Federal Courthouse).
`
`If this case remains in Texas, the Apple witnesses would need to spend days away
`
`from home and work — as opposed to several hours if the trial takes place in the Northern
`
`District of California. This travel burden is significant and has been cited often as a key
`
`reason why transfer is appropriate. E.g., Volkswagen I1, 545 F.3d at 317 (“Witnesses not
`
`only suffer monetary costs, but also the personal costs associated with being away from
`
`work, family and community"). This length of travel also imposes additional burdens
`
`beyond travel time, such as meal and lodging expenses. Volkswagen 1, 371 F.3d at 204-
`
`05; see also In re Acer America Corp, 626 F.3d 1252, 1255 (2010) (noting that in
`
`requiring party employees to travel for trial the parties would likely incur significant
`
`expenses for airfare, meals, lodging, as well as losses in productivity from time spent
`
`away from work). These inconveniences are particularly concerning in the COVlD-19
`
`14
`
`18
`
`18
`
`

`

`Case 4:20-cv-02652 Document 40 Filed on 11103120 in TXSD Page 19 of 24
`
`pandemic, which heightens the burden and risk of travel. See EX. B; Ex. J (CDC
`
`Coronavirus Travel Guidance). For all of these reasons, it would be clearly more
`
`convenient for the witnesses based in the Northern and Central Districts of California to
`
`attend trial in the Northern District of California. Volkswagen H, 545 F.3d at 317
`
`(recognizing the “obvious conclusion” that “it is more convenient for witnesses to testify
`
`at home”).
`
`On the other hand, GUI is likely to have only one party witness that would need to
`
`attend proceedings in the Northern District of California: its president, Mr. Walter
`
`Mayfreld. Mr. Mayfield is also an inventor named on the Asserted Patents. Ex. B; Ex. C.
`
`The court in Kilboume, when faced with nearly identical circumstances, held that this
`
`factor nonetheless weighs in favor of transfer. Kilboume, 2018 WL 3954864 at *4. The
`
`court found, while “it is beyond dispute that the relative cost to [plaintiff] of atten