Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 1 of 21
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`Sable Networks, Inc. and
`Sable IP, LLC,
`
` Plaintiffs,
`
` v.
`
`Cloudflare, Inc.,
`
` Defendant.
`
`
`
`
`
`Civil Action No.
`6:21-cv-00261-ADA
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`
`
`
`
`DEFENDANT CLOUDFLARE, INC.’S
`OPPOSED MOTION TO TRANSFER VENUE
`
`
`
`
`
`CHARHON CALLAHAN
`ROBSON & GARZA, PLLC
`
`STEVEN CALLAHAN
`CHRISTOPHER T. BOVENKAMP
`MARTIN C. ROBSON
`ANTHONY M. GARZA
`C. LUKE NELSON
`JOHN HEUTON
`
`Counsel for Defendant Cloudflare, Inc.
`
`
`
`
`
`
`September 1, 2021
`
`Cloudflare - Exhibit 1066, page 1
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 2 of 21
`
` 
`I. 
`
`II. 
`
`III. 
`
`IV. 
`
`TABLE OF CONTENTS
`
`INTRODUCTION .............................................................................................................. 1 
`
`PROCEDURAL AND FACTUAL BACKGROUND ........................................................ 1 
`
`A. 
`
`B. 
`
`The Parties ................................................................................................................ 1 
`
`Sable’s Venue Allegations ........................................................................................ 3 
`
`LEGAL STANDARD ......................................................................................................... 3 
`
`THE NDCA IS CLEARLY THE MOST
`CONVENIENT FORUM FOR THIS CASE ...................................................................... 4 
`
`A. 
`
`B. 
`
`Sable Could Have Filed This Case In The NDCA ................................................... 4 
`
`The Private-Interest Factors Clearly Favor Transfer To The NDCA ....................... 5 
`
`1.  The NDCA Offers Easier Access To Sources Of Proof ................................... 5 
`
`2.  The Availability Of Compulsory Process Favors Transfer To The NDCA ..... 7 
`
`3.  Trial In The NDCA Substantially Lowers
`The Cost Of Attendance For Willing Witnesses ............................................ 10 
`
`4.  The Practical-Problems Factor Favors Transfer To The NDCA .................... 11 
`
`C. 
`
`The Public-Interest Factors Favor Transfer To The NDCA ................................... 12 
`
`1.  The Local Interests Factor Favors Transfer To The NDCA .......................... 13 
`
`2.  The Remaining Public-Interest Factors Are Neutral ...................................... 14 
`
`D.  Considered Together, The Private- And Public-Transfer Factors Show
`
`That The NDCA Is Clearly More Convenient Than The WDTX .......................... 15 
`
`V. 
`
`CONCLUSION ................................................................................................................. 15 
`
`
`
` 
`
`
`
`
`
`
`ii
`
`Cloudflare - Exhibit 1066, page 2
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 3 of 21
`
`
`CASES
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`10Tales, Inc. v. TikTok Inc.,
`20-CV-00810, 2021 WL 2043978 (W.D. Tex. May 21, 2021) .................................................7
`
`DataQuill, Ltd. v. Apple Inc.,
`13-CV-706, 2014 WL 2722201 (W.D. Tex. June 13, 2014) ...................................................14
`
`Datascape Ltd. v. Dell Techs., Inc.,
`19-CV-00129, 2019 WL 4254069 (W.D. Tex. June 7, 2019) ...............................................6, 7
`
`In re Adobe Inc.,
`823 F. App’x 929 (Fed. Cir. 2020) ..........................................................................................15
`
`In re Apple, Inc.,
`581 Fed. App’x 886 (Fed. Cir. 2014) .........................................................................................7
`
`In re Apple Inc.,
`979 F.3d 1332 (Fed. Cir. 2020)......................................................................................5, 13, 15
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)................................................................................................11
`
`In re Google Inc.,
`2017-107, 2017 WL 977038 (Fed. Cir. Feb. 23, 2017) .......................................................7, 12
`
`In re Hoffman-La Roche Inc.,
`587 F.3d 1333 (Fed. Cir. 2009)................................................................................................13
`
`In re Hulu, LLC,
`2021-142, 2021 WL 3278194 (Fed. Cir. Aug. 2, 2021) ....................................................10, 15
`
`In re Radmax, Ltd.,
`720 F.3d 285 (5th Cir. 2013) .........................................................................................4, 12, 16
`
`In re Samsung Elecs. Co.,
`2 F.4th 1371 (Fed. Cir. 2021) ............................................................................................11, 14
`
`In re TracFone Wireless, Inc.,
`852 Fed. Appx. 537 (Fed. Cir. 2021) .......................................................................................10
`
`In re TS Tech USA Corp.,
`551 F.3d 1315 (Fed. Cir. 2008)............................................................................................5, 15
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) ...............................................................................................4, 13
`iii
`
`
`
`Cloudflare - Exhibit 1066, page 3
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 4 of 21
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) ........................................................................................... passim
`
`In re Zimmer Holdings, Inc.,
`609 F.3d 1378 (Fed. Cir. 2010)................................................................................................12
`
`McCloud v. McLinton Energy Grp., L.L.C.,
`14-CV-620, 2014 WL 6388417 (W.D. Tex. Nov. 14, 2014) .................................................6, 7
`
`Mimedx Group, Inc. v. Tex. Human Biologics, Ltd.,
`14-CV-464, 2014 WL 12479284 (W.D. Tex. Aug. 12, 2014) .....................................10, 12, 16
`
`Moskowitz Family LLC. v. Globus Med., Inc.,
`19-CV-00672, 2020 WL 4577710 (W.D. Tex. July 2, 2020) ..................................................10
`
`Parus Holdings Inc. v. LG Elecs. Inc.,
`19-CV-00432, 2020 WL 4905809 (W.D. Tex. Aug. 20, 2020) ...............................................15
`
`Raz Imps., Inc. v. Luminara Worldwide, LLC,
`15-CV-02223, 2015 WL 6692107 (N.D. Tex. Nov. 3, 2015)....................................................6
`
`SynKloud Techs., LLC v. Dropbox, Inc.,
`19-CV-00525, 2020 WL 2494574 (W.D. Tex. May 14, 2020) ...............................................10
`
`Uniloc USA Inc. v. Box, Inc.,
`17-CV-754, 2018 WL 2729202 (W.D. Tex. June 6, 2018) .....................................................14
`
`Van Dusen v. Barrack,
`376 U.S. 612 (1964) ...................................................................................................................4
`
`Wet Sounds, Inc. v. Audio Formz, LLC,
`17-CV-141, 2017 WL 4547916 (W.D. Tex. Oct. 11, 2017) ......................................................5
`
`XY, LLC v. Trans Ova Genetics, LC,
`16-CV-447, 2017 WL 5505340 (W.D. Tex. Apr. 5, 2017) .......................................................5
`
`STATUTES
`
`28 U.S.C. § 1400(b) .........................................................................................................................4
`
`28 U.S.C. § 1404(a) .........................................................................................................1, 4, 12, 13
`
`OTHER AUTHORITIES
`
`Fed. R. Civ. P. 45(c) ........................................................................................................................7
`
`
`
`iv
`
`Cloudflare - Exhibit 1066, page 4
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 5 of 21
`
`I.
`
`INTRODUCTION
`
`Pursuant to 28 U.S.C. § 1404(a), Defendant Cloudflare, Inc. (“Cloudflare”) moves to trans-
`
`fer this case to the Northern District of California (“NDCA”). Cloudflare is a Delaware corporation
`
`with its headquarters in the NDCA. The research, design, development, implementation, and prod-
`
`uct marketing of Cloudflare’s products is centered in and managed from the NDCA. One of the
`
`two Sable plaintiffs is a California corporation with its principal place of business in the NDCA.
`
`And four of the inventors of the patents-in-suit reside in the NDCA, where the predecessor owner
`
`of the patents-in-suit (Caspian Networks) was also based. Numerous current or former Sable and
`
`Caspian employees who possess relevant knowledge also reside in the NDCA.
`
`Given these strong connections to the NDCA, it is not surprising that the overwhelming
`
`majority of known party and third-party witnesses currently work and reside in the NDCA, includ-
`
`ing numerous Cloudflare witnesses, named inventors of the patents-in-suit, prosecution counsel,
`
`and prior-art witnesses. Many of the key documents relevant to this dispute are also located in the
`
`NDCA and the NDCA has a much greater local interest in this matter than does the Western Dis-
`
`trict of Texas (“WDTX”). Indeed, Sable does not allege that it has any presence or does any busi-
`
`ness in the WDTX. And it is undisputed that the Waco Division has no connection to this case.
`
`As shown below, an analysis of the § 1404(a) factors demonstrates that the NDCA is a
`
`clearly more convenient venue than the WDTX. Cloudflare respectfully requests that the Court
`
`transfer the case to the NDCA.
`
`II.
`
`PROCEDURAL AND FACTUAL BACKGROUND
`
`A.
`
`The Parties
`
`According to the Complaint, Sable Networks, Inc., is a California corporation (see ECF
`
`No. 1 (“Compl.”), ¶ 13), and its principal place of business is located at 3171 Jay Street, Santa
`
`
`
`1
`
`Cloudflare - Exhibit 1066, page 5
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 6 of 21
`
`Clara, California (see Declaration of Martin C. Robson (“Robson Decl.”), Ex. 1).1 Sable IP, LLC
`
`is a Delaware LLC based in Minneapolis, Minnesota. Compl., ¶ 16. Sable Networks acquired rights
`
`to the patents-in-suit by assignment from Caspian Networks, Inc. (Compl., ¶¶ 8, 10, 14), a com-
`
`pany no longer in existence but formerly headquartered in San Jose, California (Robson Decl., Ex.
`
`2). Sable IP is the exclusive licensee of the patents-in-suit. Compl., ¶ 16. The Complaint shows no
`
`connection between Sable and the WDTX. Instead, it appears as if Sable’s employees live primar-
`
`ily within the NDCA. Robson Decl. ¶¶ 19-25 and Exs. 15, 16, 17, 18, 19, 20, 21.
`
`Cloudflare is a leader in web-infrastructure and website-security services that provides
`
`content-delivery-network services, DDoS mitigation, Internet security, and distributed domain-
`
`name-server services. See Declaration of Rustam Lalkaka (“Lalkaka Decl.”), ¶ 3. Cloudflare is a
`
`Delaware corporation with its principal place of business in San Francisco where it has approxi-
`
`mately 650 employees and contractors. Id., ¶ 4. Cloudflare maintains facilities worldwide, includ-
`
`ing an office in Austin with approximately 400 employees and contractors. Id., ¶ 5.
`
`Employees in Cloudflare’s San Francisco office are responsible for researching, designing,
`
`developing, implementing, testing, marketing and managing Cloudflare’s products, including the
`
`accused products.2 Id., ¶ 8. Cloudflare’s employees with knowledge of sales, marketing, and fi-
`
`nancial information (e.g., revenues, expenses, profits, etc.) concerning the accused products also
`
`work in Cloudflare’s San Francisco and San Jose offices. Id. ¶¶ 9-10. Aside from employees lo-
`
`cated in the NDCA, Cloudflare has identified additional employees with knowledge of the accused
`
`products who reside in or near Austin, Texas; Champaign, Illinois; and Los Angeles, California.
`
`
`1 The Complaint does not specify Sable Networks’ principal place of business.
`2 The “accused products,” as used herein, are those products or functionality accused in the
`Complaint and/or Sable’s infringement contentions, including: Cloudflare’s Edge Servers (Gen 6,
`7, 8, 9, 10), Cloudflare Magic Transit, and Cloudflare DDoS Protection.
`2
`
`
`
`Cloudflare - Exhibit 1066, page 6
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 7 of 21
`
`Id., ¶ 11. Cloudflare has no offices, facilities, corporate subsidiaries, or affiliates in the Waco Di-
`
`vision. Id., ¶ 7. Cloudflare’s customers are found throughout the United States and world. Id., ¶ 6.
`
`B.
`
`Sable’s Venue Allegations
`
`Sable alleges that Cloudflare directly infringes four of its patents.3 See generally Compl.
`
`In its Complaint, Sable pleads no facts connecting Cloudflare’s allegedly infringing activities to
`
`the Waco Division. Regarding venue, Sable asserts only that:
`
`21. Venue is proper in this district under 28 U.S.C. §§ 1391(b)-(d)
`and 1400(b). Defendant Cloudflare is registered to do business in
`the State of Texas, has offices in the State of Texas, has transacted
`business in the Western District of Texas and has committed acts of
`direct and indirect infringement in the Western District of Texas.
`
`22. Cloudflare has a regular and established place of business in this
`District and has committed acts of infringement in this District.
`Cloudflare has permanent office locations at 106 E. 6th Street, Suite
`350, Austin, Texas 78701, which is located within this judicial Dis-
`trict. Cloudflare employs several hundred full-time personnel such
`as engineers, executives, and sales personnel in this District, includ-
`ing in Austin, Texas. Cloudflare has also committed acts of infringe-
`ment in this District by commercializing, marketing, selling, distrib-
`uting, testing, and servicing certain Accused Products.
`
`Id., ¶¶ 21-22. Sable also alleges that Cloudflare “sells, develops, and/or markets its products” at
`
`its Austin office. Id., ¶ 18. In its Answer, Cloudflare admits that it is registered to do business in
`
`the State of Texas, maintains an office and employees in Austin, and has transacted business within
`
`the WDTX. ECF No. 16 (“Answer”), ¶¶ 21-22.
`
`III. LEGAL STANDARD
`
`“For the convenience of parties and witnesses, in the interest of justice, a district court may
`
`transfer any civil action to any other district or division where it might have been brought.” 28
`
`
`3 Although the Complaint alleges induced infringement and willful infringement, see
`Compl., ¶¶ 86-89, 105-108, 125-128, 145-148, the parties agreed to dismiss those allegations with-
`out prejudice. See ECF No. 15 (Joint Stipulation to Dismiss Certain of Plaintiffs’ Allegations).
`Thus, at this time, Sable only alleges direct infringement.
`3
`
`
`
`Cloudflare - Exhibit 1066, page 7
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 8 of 21
`
`U.S.C. § 1404(a). Transfer is appropriate under § 1404(a) to prevent the waste of time, energy,
`
`and money, and to protect litigants, witnesses, and the public against unnecessary inconvenience
`
`and expense. See Van Dusen v. Barrack, 376 U.S. 612, 616 (1964).
`
`For transfer under § 1404(a), a movant must first show that the case could have been
`
`brought in the proposed transferee district. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)
`
`(“Volkswagen I”). If the case could have been brought there, the court weighs the so-called private-
`
`and public-interest factors to determine whether transfer is appropriate. In re Radmax, Ltd., 720
`
`F.3d 285, 288 (5th Cir. 2013).4
`
`IV.
`
`THE NDCA IS CLEARLY THE MOST CONVENIENT FORUM FOR THIS CASE
`
`A.
`
`Sable Could Have Filed This Case In The NDCA
`
`As a threshold question, courts look to whether the plaintiff could have filed the case in the
`
`proposed transferee division. See, e.g., In re Volkswagen of Am., Inc., 545 F.3d 304, 312 (5th Cir.
`
`2008) (“Volkswagen II”). Under 28 U.S.C. § 1400(b), a corporate defendant may be sued (i) in its
`
`state of incorporation, or (ii) where it has committed acts of (alleged) infringement and has a reg-
`
`ular and established place of business. Here, both parties acknowledge that Cloudflare maintains
`
`its “principal place of business at 101 Townsend Street, San Francisco, CA 94107.” Compl., ¶ 17;
`
`Answer, ¶ 17 (same); see also Lalkaka Decl., ¶ 4. Thus, because Cloudflare maintains a regular
`
`and established place of business in San Francisco, where it has engaged in alleged acts of
`
`
`4 The private-interest factors are: “(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.” Volkswagen I, 371 F.3d at 203. The public-interest factors are: “(1) the admin-
`istrative difficulties flowing from court congestion; (2) the local interest in having localized inter-
`ests decided at home; (3) the familiarity of the forum with the law that will govern the case; and
`(4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign
`law.” In re Radmax, Ltd., 720 at 288.
`
`
`
`4
`
`Cloudflare - Exhibit 1066, page 8
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 9 of 21
`
`infringement, see Lalkaka Decl., ¶¶ 8-10, Sable could have filed this suit in the NDCA.
`
`B.
`
`The Private-Interest Factors Clearly Favor Transfer To The NDCA
`
`As explained below, all of the private-interest factors support transfer.
`
`1.
`
`The NDCA Offers Easier Access To Sources Of Proof
`
`In considering access to sources of proof, a court looks to the location of evidence, such as
`
`documents and physical evidence. Volkswagen II, 545 F.3d at 315-6. “In patent infringement cases,
`
`the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the
`
`place where the defendant’s documents are kept weighs in favor of transfer to that location.” In re
`
`Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir. 2020) (citing In re Genentech, Inc., 566 F.3d 1338,
`
`1345 (Fed. Cir. 2009)).5 Additionally, in weighing this factor, “the Court will look to the location
`
`where the allegedly infringing products were researched, designed, developed and tested.” XY,
`
`LLC v. Trans Ova Genetics, LC, 16-CV-447, 2017 WL 5505340, at *13 (W.D. Tex. Apr. 5, 2017).
`
`The preferred forum is “the center of gravity of the accused activity,” including where the “testing,
`
`research, and production as well as the place where the marketing and sales decisions occurred.”
`
`Raz Imps., Inc. v. Luminara Worldwide, LLC, 15-CV-02223, 2015 WL 6692107, at *5 (N.D. Tex.
`
`Nov. 3, 2015) (quotations omitted).
`
`Here, the center of gravity of the accused activity is in San Francisco, not Waco. Specifi-
`
`cally, Cloudflare manages the research, design, development, implementation, testing and market-
`
`ing of its products from its San Francisco office, while its employees working on the research,
`
`
`5 The fact that much information may be stored electronically does not affect the analysis.
`See In re TS Tech USA Corp., 551 F.3d 1315, 1320-21 (Fed. Cir. 2008) (holding that the trial court
`erred in finding this factor neutral because many documents were stored electronically); Wet
`Sounds, Inc. v. Audio Formz, LLC, 17-CV-141, 2017 WL 4547916, at *2 (W.D. Tex. Oct. 11,
`2017) (“[D]espite technological advances that make the physical location of documents less sig-
`nificant, the location of sources of proof remains a meaningful factor in the analysis.”) (quotations
`omitted).
`
`
`
`5
`
`Cloudflare - Exhibit 1066, page 9
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 10 of 21
`
`design, development, implementation, testing and marketing of the accused products work in sev-
`
`eral Cloudflare offices, including its San Francisco, San Jose, Austin, Champaign and Los Angeles
`
`offices. See Lalkaka Decl., ¶¶ 8-11. More specifically, eight of the eleven Cloudflare employee-
`
`witnesses work at Cloudflare’s San Francisco or San Jose office and reside within the NDCA.6 Id.,
`
`¶¶ 9-11. Thus, the majority of employees with the most relevant knowledge work in Cloudflare’s
`
`NDCA offices and they store their documents in that venue as well. Id., ¶ 13.7 Conversely, Cloud-
`
`flare does not have an office in Waco, and there are no Cloudflare employees that possess relevant
`
`knowledge or documents in the Waco Division. Id., ¶¶ 7, 13.
`
`This factor thus significantly favors transfer. See, e.g., In re Google Inc., 2017-107, 2017
`
`WL 977038, at *3 (Fed. Cir. Feb. 23, 2017) (transfer appropriate where the “vast majority of [the
`
`petitioner’s] employees—in particular those responsible for projects relating to the accused prod-
`
`ucts—work[ed] and reside[d] in the Northern District of California”); Datascape, 2019 WL
`
`4254069, at *2 (ordering transfer where “Plaintiff failed to proffer or identify any such sources [of
`
`
`6 In addition to the relevant witnesses located in the NDCA, some of Cloudflare’s relevant
`witnesses who were involved with the research, design, develop, implementation, testing and mar-
`keting of the accused products work at its offices in Austin, Champaign and Los Angeles. Lalkaka
`Decl., ¶ 11. The fact that some of Cloudflare’s witnesses and documents are outside of the NDCA
`is immaterial to the transfer analysis. The critical point is that none of the relevant witnesses or
`evidence are in the Waco Division. See, e.g., McCloud v. McLinton Energy Grp., L.L.C., 14-CV-
`620, 2014 WL 6388417, at *3 (W.D. Tex. Nov. 14, 2014) (“Although Plaintiffs state that not ‘all’
`the evidence is in Midland, certainly the bulk of it is there, and Plaintiffs point to no evidence in
`San Antonio or within the San Antonio Division.”); Datascape Ltd. v. Dell Techs., Inc., 19-CV-
`00129, 2019 WL 4254069, at *2 (W.D. Tex. June 7, 2019) (“the question is relative ease of access,
`not absolute ease of access”) (emphasis in original) (citation and quotations omitted).
`7 Cloudflare employees typically store and maintain hard-copy files at the Cloudflare office
`in which they work. Lalkaka Decl., ¶ 13. Thus, the vast majority of hard-copy documents main-
`tained by Cloudflare’s San Francisco employees are located in Cloudflare’s San Francisco office.
`Id. Cloudflare employees store electronic documents either on their computer desktop, local drive
`or to Cloudflare’s internal document databases. Id. Cloudflare’s internal databases are primarily
`hosted at Cloudflare’s data center located in Portland, Oregon. Id. No Cloudflare documents are
`stored or maintained in the Waco Division. Id.
`
`
`
`6
`
`Cloudflare - Exhibit 1066, page 10
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 11 of 21
`
`proof] in Waco”); McCloud v. McClinton Energy Grp., LLC, 14-CV-620, 2014 WL 6388417, at
`
`*3 (W.D. Tex. Nov. 14, 2014) (finding that this factor weighed in favor of transfer where plaintiffs
`
`“point[ed] to no evidence” located within transferor division) (emphasis in original).
`
`2.
`
`The Availability Of Compulsory Process Favors Transfer To The NDCA
`
`This factor “weigh[s] heavily in favor of transfer when more third-party witnesses reside
`
`within the transferee venue than reside in the transferor venue.” In re Apple, Inc., 581 Fed. App’x
`
`886, 889 (Fed. Cir. 2014); 10Tales, Inc. v. TikTok Inc., 20-CV-00810, 2021 WL 2043978, at *3
`
`(W.D. Tex. May 21, 2021) (same). Under the Federal Rules of Civil Procedure, a court may sub-
`
`poena a witness to attend trial only (a) “within 100 miles of where the person resides, is employed,
`
`or regularly transacts business in person”; or (b) “within the state where the person resides, is
`
`employed, or regularly transacts business in person, if the person . . . is commanded to attend a
`
`trial and would not incur substantial expense.” Fed. R. Civ. P. 45(c)(1)(A), (B)(ii).
`
`As identified on the face of the patents-in-suit, six of the seven named inventors of the
`
`patents-in-suit resided in California at the time the applications of the patents-in-suit were filed
`
`(see Compl., Exs. A, B, C, D) and presently five of the seven named inventors appear to reside in
`
`California, with four residing within the NDCA (see Robson Decl., ¶¶ 5-12 and Exs. 3, 4, 5, 6, 7,
`
`8, 9). The following chart shows where the named inventors resided at the time the applications
`
`for the patents-in-suit were filed and their current residences based on publicly available sources:
`
`Prior Location
`Woodside, CA
`
`Patent No.
`Named Inventor
`Lawrence G. Roberts 6,954,431
`7,012,919
`Bloomington, MN
`6,977,932
`San Carlos, CA
`7,012,919
`Campbell, CA
`7,012,919
`7,012,919 Mountain View, CA
`7,012,919
`Palo Alto, CA
`8,243,593
`Santa Clara, CA
`
`Scott Hauck
`Tricci Y. So
`Faizel Z. Lakhani
`John A. McBrayne
`Gary G. Croke
`Vishnu Natchu
`
`Current Location
`Deceased
`
`Minneapolis, MN
`Oceanside, CA
`San Francisco, CA
`San Jose, CA
`San Jose, CA
`Santa Clara, CA
`
`Compare Compl. Exs. A, B, C, D, with Robson Decl., ¶¶ 5-12 and Exs. 3, 4, 5, 6, 7, 8, 9.
`7
`
`
`
`Cloudflare - Exhibit 1066, page 11
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 12 of 21
`
`Prosecution counsel also has a strong connection to the NDCA:
`
`Prosecution Firm
`Fenwick & West LLP
`Martine Penilla & Gencarella,
`LLP (n/k/a Penilla IP, APC)
`West & Associates, A PC
`Stuart J. West
`Shaun N. Sluman
`
`Current Location
`Prior Location
`Patent No.
`6,954,431 Mountain View, CA Mountain View, CA
`6,977,932
`Sunnyvale, CA
`Sunnyvale, CA
`7,012,919
`8,243,593 Walnut Creek, CA
`8,243,593 Walnut Creek, CA
`8,243,593 Walnut Creek, CA
`
`Walnut Creek, CA
`Walnut Creek, CA
`Seattle, WA
`
`See Compl. Exs. A, B, C, D; Robson Decl., ¶¶ 13-18 and Exs. 10, 11, 12, 13, 14.
`
`
`
`Sable’s Complaint states that the patents-in-suit are purportedly the result of the “technol-
`
`ogies developed by Dr. Roberts and Caspian Networks” and presumably related to Sable’s much-
`
`touted “Apeiro” “flow-based” router. See, e.g., Compl., ¶¶ 5, 6, 8. Thus, in addition to Sable’s
`
`employees that have relevant knowledge of the patents-in-suit, former Caspian employees likely
`
`possess knowledge relevant to questions of conception, reduction to practice, products practicing
`
`the claimed inventions, diligence, damages, marking, and secondary considerations of non-obvi-
`
`ousness. See id. (“Sable Networks, Inc. was formed . . . to further develop and commercialize the
`
`flow-based networking technologies developed by Dr. Roberts and Caspian Networks.”).
`
`Based on publicly available information, Sable has fourteen employees, with six employ-
`
`ees residing in the United States and eight residing overseas. See Robson Decl., ¶ 19 and Ex. 15.
`
`Of the six United States-based employees, five live in the San Francisco area, one lives in Tennes-
`
`see, and none live in Texas. Id. At least five former Caspian employees that likely have relevant
`
`knowledge currently reside in the NDCA. Id., ¶¶ 26-30 and Exs. 22, 23, 24, 25, 26. The following
`
`chart shows current or former Sable and Caspian employees who live in the NDCA:
`
`Name
`Susumu Watanabe
`Kote Anumolu
`
`Maria Reilly
`Sanjay Oza
`
`
`
`Location
`Title (Present or Former)
`Sable, Chief Financial Officer Sunnyvale, CA
`Sable, Routing Software
`Sunnyvale, CA
`Architect
`Sable, EC Analyst
`Sable, Engineering Director
`
`San Jose, CA
`Cupertino, CA
`
`8
`
`Cloudflare - Exhibit 1066, page 12
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 13 of 21
`
`Thong Tran
`Tra Nguyen
`Brad Wurtz
`Geoffrey Mattson
`
`Douglas Luftman
`
`Dr. Riad Hartani
`Raul Herrera
`
`San Jose, CA
`Milpitas, CA
`San Francisco, CA
`Mountain View, CA
`
`San Francisco, CA
`
`San Francisco, CA
`Newark, CA
`
`Sable, Test Engineer
`Sable, Test Engineer
`Caspian, President and CEO
`Caspian, Vice President of
`Engineering
`
`Sable, Chief Technical
`Officer and Founder
`Caspian, Vice President,
`General Counsel and
`Secretary
`Caspian, Chief Architect
`Caspian, Senior Hardware
`Engineer
`
`Sable, Senior Hardware
`Engineer
`
`Robson Decl., ¶¶ 20-30 and Exs. 1, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26.
`
`Cloudflare has also identified three prior-art systems made by companies founded and
`
`headquartered in the NDCA. Specifically, Cloudflare intends to rely on prior-art systems consist-
`
`ing of various routers and switches developed by Cisco Systems, Inc., Juniper Networks, Inc. and
`
`Packeteer, Inc. (now known as Blue Coat Systems, Inc.). Robson Decl., ¶ 35. Each of these com-
`
`panies is headquartered in the NDCA—Cisco is headquartered in San Jose, California; Juniper is
`
`headquartered in Sunnyvale, California; and Blue Coat is headquartered in Sunnyvale, California.
`
`Robson Decl., ¶¶ 31-33 and Exs. 27, 28, 29.8
`
`In sum, four named inventors, four patent prosecution counsel, eleven witnesses connected
`
`to Sable or its predecessor Caspian, and three prior-art companies reside or are headquartered in
`
`the NDCA. Each of these twenty-two witnesses are within the subpoena power of the NDCA, but
`
`
`8 Prior to being acquired by Blue Coat Systems, Inc., Packeteer, Inc. was headquartered in
`Sunnyvale, California. See Robson Decl., ¶ 34 and Ex. 30.
`9
`
`
`
`Cloudflare - Exhibit 1066, page 13
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 14 of 21
`
`outside of this Court’s subpoena power, and thus could not be compelled to testify at trial if this
`
`case remained in the WDTX. This factor weighs heavily in favor of transfer to the NDCA.9
`
`3.
`
`Trial In The NDCA Substantially Lowers The Cost Of Attendance For Will-
`ing Witnesses
`
`“The convenience of witnesses is the single most important factor in a transfer analysis.”
`
`Moskowitz Family LLC. v. Globus Med., Inc., 19-CV-00672, 2020 WL 4577710, at *4 (W.D. Tex.
`
`July 2, 2020) (citing Genentech, 566 F.3d at 1342); SynKloud Techs., LLC v. Dropbox, Inc., 19-
`
`CV-00525, 2020 WL 2494574, at *4 (W.D. Tex. May 14, 2020). This factor “appropriately con-
`
`siders the cost of attendance of all willing witnesses,” including non-party and party witnesses.
`
`Mimedx Group, Inc. v. Tex. Human Biologics, Ltd., 14-CV-464, 2014 WL 12479284, at *2 (W.D.
`
`Tex. Aug. 12, 2014) (emphasis in original). This factor also considers not only “monetary costs”
`
`imposed on witnesses who must travel for trial, “but also the personal costs associated with being
`
`away from work, family, and community.” Volkswagen II, 545 F.3d at 317. The Federal Circuit
`
`recently explained that the “rationale” for this factor is “to minimize the time when [fact witnesses]
`
`are removed from their regular work or home responsibilities.” In re TracFone Wireless, Inc., 852
`
`Fed. Appx. 537, 539 (Fed. Cir. 2021); see also Genentech, 566 F.3d at 1343 (“it generally becomes
`
`more inconvenient and costly for witnesses to attend trial the further they are away from home”).
`
`As explained above, numerous Cloudflare employees with relevant knowledge reside and
`
`work in the San Francisco area. For these witnesses, NDCA is clearly more convenient than the
`
`WDTX as requiring the witnesses to travel from San Francisco to Waco and back for hearings or
`
`
`9 Importantly, the Federal Circuit recently noted that it “think[s] that the Fifth Circuit would
`recognize that where, as here, the movant has identified multiple third-party witnesses and shown
`that they are overwhelmingly located within the subpoena power of only the transferee venue, this
`factor favors transfer even without a showing of unwillingness for each witness.” In re Hulu, LLC,
`2021-142, 2021 WL 3278194, at *4 (Fed. Cir. Aug. 2, 2021).
`10
`
`
`
`Cloudflare - Exhibit 1066, page 14
`
`

`

`Case 6:21-cv-00261-ADA Document 26 Filed 09/01/21 Page 15 of 21
`
`trial would place an unnecessary burden on them. Other Cloudflare employees with relevant
`
`knowledge of the accused products and issues presented in this case reside in Austin, Champaign
`
`and Los Angeles.10 Lalkaka Decl., ¶ 11. For the non-Austin-based witnesses, San Francisco re-
`
`mains a more convenient forum than Waco—e.g., they can fly non-stop into San Francisco and
`
`work in Cloudflare’s San Francisco office when not appearing in court. Id., ¶ 14; compare Robson
`
`Decl. Exs. 31, 32 with Exs. 33, 34 (showing non-stop flights from Chicago and Los Angeles to
`
`San Francisco).
`
`The vast majority of all other known witnesses live in the NDCA—trial in San Francisco,
`
`as opposed to Waco, would be much more convenient for them. This factor thus significantly
`
`favors transfer, as the cost of attendance and related burdens for the vast majority of the known
`
`party and non-party witnesses would be less in San Francisco than in Waco. See In re Samsung
`
`Elecs. Co., 2 F.4th 1371, 1379 (Fed. Cir. 2021).
`
`4.
`
`The Practi