Case 6:21-cv-00454-ADA Document 75 Filed 04/28/22 Page 1 of 17
`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`SCRAMOGE TECHNOLOGY LTD.,
`
`Plaintiff,
`
`Case No. 6:21-cv-00454-ADA
`
`v.
`
`JURY TRIAL DEMANDED
`
`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
`
`PUBLIC VERSION
`
`Defendants.
`
`PLAINTIFF SCRAMOGE TECHNOLOGY LTD.’S OPPOSITION TO
`DEFENDANTS’ MOTION TO TRANSFER TO THE NOTHERN DISTRICT OF
`CALIFORNIA UNDER 28 U.S.C. § 1404(a)
`
`Scramoge Technology Ltd.
`Ex. 2022 - Page 1
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`

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`Case 6:21-cv-00454-ADA Document 75 Filed 04/28/22 Page 2 of 17
`
`TABLE OF CONTENTS
`
`I.
`
`INTRODUCTION .................................................................................................................. 1
`
`II. LEGAL STANDARD ............................................................................................................. 1
`
`III. ARGUMENT .......................................................................................................................... 2
`
`A. The Private Interest Factors Weigh Against Transfer ......................................................... 2
`
`i.
`
`Relative ease of access to sources of proof ..................................................................... 2
`
`ii. Availability of compulsory process weighs against transfer .......................................... 5
`
`iii. Cost of attendance of willing witnesses .......................................................................... 6
`
`Judicial economy strongly weighs against transfer in light of two co-pending actions
`iv.
`involving the same patents pending before this Court ............................................................ 8
`
`B. The Public Interest Factors Weigh Against Transfer ........................................................ 10
`
`i.
`
`This case will proceed to trial faster in this District ..................................................... 10
`
`ii. Local interest ................................................................................................................. 10
`
`iii. Familiarity of the forum with law-at-issue ................................................................... 10
`
`iv. Conflict of laws ............................................................................................................. 11
`
`IV. CONCLUSION ..................................................................................................................... 11
`
`i
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`Case 6:21-cv-00454-ADA Document 75 Filed 04/28/22 Page 3 of 17
`
`Cases
`
`TABLE OF AUTHORITIES
`
`AGIS Software Dev. LLC v. Huawei Device USA Inc.,
`No. 2:17-CV-00513-JRG, 2018 WL 2329752 (E.D. Tex. May 23, 2018) ................................. 8
`
`Camatic Proprietary Ltd. v. Irwin Seating Co.,
`No. 3:16-CV-0795-M, 2017 WL 2362029 (N.D. Tex. May 31, 2017) ...................................... 8
`
`CPC Patent Techs. PTY Ltd. v. Apple Inc.,
`No. 6:21-cv-00165, Dkt. No. 82 (W.D. Tex. Feb. 8, 2022) .............................................. 4, 9, 10
`
`DynaEnergetics Eur. GmbH v. Hunting Titan, Inc.,
`No. 6:20-CV-00069-ADA, 2020 WL 3259807 (W.D. Tex. June 16, 2020) .............................. 9
`
`EcoFactor, Inc. v. Google LLC,
`No. 6-20-CV-00075-ADA, 2021 WL 1535413 (W.D. Tex. Apr. 16, 2021) .................. 2, 3, 8, 9
`
`In re Acer Am. Corp.,
`626 F.3d 1252 (Fed. Cir. 2010)................................................................................................. 10
`
`In re Apple Inc.,
`456 F. App’x 907 (Fed. Cir. 2012) ......................................................................................... 5, 9
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)................................................................................................... 8
`
`In re Intel Corp.,
`No. 2021-168, 2021 WL 4427875 (Fed. Cir. Sept. 27, 2021) .................................................... 8
`
`In re Vistaprint Ltd.,
`628 F.3d 1342 (Fed. Cir. 2010)................................................................................................... 1
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) ...................................................................................................... 1
`
`In re Volkswagen of Am., Inc.,
`566 F.3d 1349 (Fed. Cir. 2009)................................................................................................... 9
`
`In re Volkswagen, Inc.,
`545 F.3d 304 (5th Cir. 2008) .................................................................................................. 1, 8
`
`Quest NetTech Corp. v. Apple, Inc.,
`No. 2:19-CV-00118-JRG, 2019 WL 6344267 (E.D. Tex. Nov. 27, 2019) ................................. 1
`
`Rockstar Consortium US LP v. Google Inc.,
`No. 2:13-CV-893-JRG-RSP, 2014 WL 4748692 (E.D. Tex. Sept. 23, 2014) ............................ 5
`
`ii
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`Uniloc 2017 LLC v. Apple Inc.,
`6-19-CV-00532-ADA, 2020 WL 3415880 (W.D. Tex. June 22, 2020) ..................................... 4
`
`iii
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`I.
`
`INTRODUCTION
`
`Plaintiff Scramoge Technology Ltd. (“Scramoge”) files this response to Defendants’
`
`Samsung Electronics Co., Ltd. (“SEC”) and Samsung Electronics America, Inc. (“SEA”)
`
`(collectively, “Samsung”) Opposed Motion to Transfer to the Northern District of California
`
`(“NDCA”) Under 28 U.S.C. § 1404(a). Samsung fails to demonstrate any factor in favor of
`
`transfer to its preferred NDCA venue. Witnesses are supposed to be the most important
`
`consideration, but Samsung fails to identify even one relevant person for evaluation by the Court.
`
`Instead, Samsung makes generalized and unsupported assertions regarding tangential contacts in
`
`NDCA. But upon closer examination, they are contradicted by the record and often do not make
`
`sense. Samsung cannot carry its heavy burden to show that NDCA is the clearly more convenient
`
`venue, and its motion should be denied.
`
`II.
`
`LEGAL STANDARD
`
`The burden to prove that a case should be transferred for convenience falls squarely on the
`
`moving party. In re Vistaprint Ltd., 628 F.3d 1342, 1346 (Fed. Cir. 2010). The burden that a
`
`movant must carry is not that the alternative venue is more convenient, but that it is clearly more
`
`convenient. In re Volkswagen, Inc., 545 F.3d 304, 314 n.10 (5th Cir. 2008) (“Volkswagen II”).
`
`The moving party “must show materially more than a mere preponderance of convenience, lest the
`
`standard have no real or practical meaning.” Quest NetTech Corp. v. Apple, Inc., No. 2:19-CV-
`
`00118-JRG, 2019 WL 6344267, at *7 (E.D. Tex. Nov. 27, 2019). There are eight private and
`
`public interest factors to be considered in determining whether the alternative venue is clearly
`
`more convenient. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”).
`
`
`
`
`
`
`
`1
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`III.
`
`ARGUMENT
`
`The factors on balance show that NDCA is not a clearly more convenient forum:
`
`Weight
`Volkswagen I Factor
`Against transfer
`Relative ease of access to sources of proof
`A.i.
`Neutral
`Availability of compulsory process
`A.ii.
`Against transfer
`Cost of attendance for willing witnesses
`A.iii.
`Against transfer
`All other practical problems
`A.iv.
`Against transfer
`Court congestion
`B.i.
`Against transfer
`Local interest
`B.ii.
`Neutral
`Familiarity with the law
`B.iii.
`Neutral
`Avoidance of unnecessary conflicts of law
`B.iv.
`The Private Interest Factors Weigh Against Transfer
`
`A.
`
`i.
`
`Relative ease of access to sources of proof
`
`This factor is neutral because Samsung has provided no evidence that any physical sources
`
`of proof are located in NDCA. “In considering the relative ease of access to sources of proof, a
`
`court looks to where documentary evidence, such as documents and physical evidence, is stored.”
`
`EcoFactor, Inc. v. Google LLC, No. 6-20-CV-00075-ADA, 2021 WL 1535413, at *2 (W.D. Tex.
`
`Apr. 16, 2021). The only documents that Samsung positively identifies are
`
`. Dkt. No. 39-04 (Lee. Decl.) ¶ 9. Samsung’s assertion that “relevant
`
`documents are located in the N.D. Cal.” however, is based solely on the fact the U.S. affiliates of
`
` potentially relevant companies have offices in NDCA. Mot. at 6.
`
`First, Samsung asserts that LG Innotek USA, Inc. is “a likely source of information and
`
`documents” and points to its location in San Jose. Id. But Samsung provide no evidence that LG
`
`Innotek USA, Inc. in San Jose has any documents whatsoever regarding this case, as the original
`
`assignee of the Patents-in-Suit was “LG Innotek Co., Ltd., Seoul (KR).” Dkt. No. 18-04; Dkt. No.
`
`18-06; Dkt. No. 18-08; Dkt. No. 18-10; Dkt. No. 18-12. Samsung does not even proffer a reason
`
`why any documents regarding Korean inventors at a Korean company would be located in San
`
`Jose. Nor can it—LG Innotek USA Inc. is merely an “overseas sales office” of LG Innotek Co.,
`
`2
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`Ltd. Hollander Decl. Ex. 1 (LG Innotek website). The relevance of LG Innotek USA. Inc. is based
`
`on speculation and unsupported in Samsung’s motion by any record citation, and it should receive
`
`no weight for this factor. See EcoFactor, 2021 WL 1535413, at *2 (rejecting defendant’s assertion
`
`“in conclusory fashion that any such evidence is ‘likely in Palo Alto, California’”).
`
` Mot. at 6. But Samsung fails to point to any
`
`actual document or physical evidence
`
`, and the Court should not assign any
`
`weight to this conclusory assertion. See EcoFactor, 2021 WL 1535413, at *2 (rejecting similar
`
`assertion where the defendant “does not point with particularity to any relevant physical
`
`documents, nor does it confirm the existence of any physical documents located in the NDCA”).
`
`This is not some unknowable fact at the time Samsung filed its motion,
`
`Finally, regarding electronic documents, “the question is relative ease of access, not
`
`absolute ease of access.” EcoFactor, 2021 WL 1535413, at *2 (citing In re Radmax, 720 F.3d
`
`285, 288 (5th Cir. 2013) (emphases in original)). Samsung’s motion is conspicuously silent as to
`
`whether it can easily access its own documents in its sizable facilities in and around the Austin
`
`area in the Western District of Texas (“WDTX”).
`
` And Samsung does not assert that it would be difficult or burdensome to make such
`
`electronic documents available in its WDTX facilities. See CPC Patent Techs. PTY Ltd. v. Apple
`
`3
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`Inc., No. 6:21-cv-00165, Dkt. No. 82 at 8 (W.D. Tex. Feb. 8, 2022) (noting that a California
`
`defendant “will have similarly convenient access to its own electronic documents at its 15,000-
`
`employee campus in Austin.”); EcoFactor, 2021 WL 1535413, at *3 (“Google does not explain
`
`why those documents cannot be accessed from its Austin, Texas office”); Uniloc 2017 LLC v.
`
`Apple Inc., 6-19-CV-00532-ADA, 2020 WL 3415880, at *9 (W.D. Tex. June 22, 2020) (noting
`
`ubiquitous ease of electronic document access “with a click of a mouse or a few keystrokes”).
`
` the convenience inquiry here should look at
`
`
`
`the facts on the ground to determine how much control Samsung has over its Austin-area facilities.
`
`
`
`
`
`
`
`
`
`
`
` Hollander Decl. Ex. 4 (Samsung
`
`Press Release) (“SEOUL, Korea – Nov. 24, 2021 – Samsung Electronics Co., Ltd., a world leader
`
`in advanced semiconductor technology, today announced that it would build a new semiconductor
`
`manufacturing facility in Taylor, Texas. . . . The Taylor site will span more than 5 million square
`
`meters and is expected to serve as a key location for Samsung’s global semiconductor
`
`manufacturing capacity along with its latest new production line in Pyeongtaek, South Korea. . . .
`
`In particular, the proximity to Samsung’s current manufacturing site in Austin, about 25 kilometers
`
`southwest of Taylor, allows the two locations to share the necessary infrastructure and
`
`resources.”). The question is not whether Samsung (SEC or SEA) has an “office” in WDTX in a
`
`
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`4
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`narrow sense, but whether Samsung exercises control over facilities in WDTX, and its own
`
`announcement that SEC is expanding its existing presence in WDTX shows that it does.
`
`In sum, Samsung identifies no physical evidence with particularity in NDCA, Samsung
`
`can easily access its electronic documents in its sizable Texas facilities, and Samsung makes no
`
`showing as to whether it can access its electronic documents in NDCA. On balance, this factor
`
`weighs against transfer. Moreover, Samsung’s less-than-forthright submission to the Court
`
`(particularly when it is in the position to know where its evidence is) should counsel against
`
`transferring this case. See Rockstar Consortium US LP v. Google Inc., No. 2:13-CV-893-JRG-
`
`RSP, 2014 WL 4748692, at *3 (E.D. Tex. Sept. 23, 2014) (“The Court is significantly concerned
`
`that Google is not being fully candid with the Court regarding the location of its relevant
`
`documents and facilities.”).
`
`ii.
`
`Availability of compulsory process weighs against transfer
`
`This factor is neutral, because Samsung does not make an independent argument regarding
`
`any third-party witnesses. Instead, it repeats its argument above regarding LG Innotek USA, Inc.
`
`in San Jose
`
`
`
`
`
`with knowledge are the listed inventors, all of whom are located in Korea, not San Jose. Dkt. No.
`
`. Mot. at 7. Samsung ignores that the LG Innotek persons
`
`18-04; Dkt. No. 18-06; Dkt. No. 18-08; Dkt. No. 18-10; Dkt. No. 18-12.
`
`
`
`
`
` This is an
`
`“ephemeral” contact that should be given little weight in this analysis. See In re Apple Inc., 456
`
`F. App’x 907, 909 (Fed. Cir. 2012) .
`
`
`
`
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`5
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`
`
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`Samsung additionally argues that “prior art authors and inventors reside in N.D. Cal.” Mot.
`
`at 7. The only support for this statement in Samsung’s motion is that “Tabuchi Electronic
`
`Company of America, the American arm of the inventor of early wireless charging pacemakers
`
`and the Tabuchi Pacemaker System, is headquartered in San Jose” and “Mojo Mobility, Inc.,
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`another original assignee of relevant wireless charging prior art, is in Santa Clara.” Mot. at 4.
`
`Neither of these assertions stands up to scrutiny. First, Samsung points to the profile of a “Tabuchi
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`Electric Company of America,” which touts solar power products that have nothing to do with the
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`wireless charging technology at issue in this case. Dkt. No. 40-15 (Westin Decl. Ex. 16). This
`
`page lists the website “http://www.tabuchiamerica.com,” but that address does not appear to be
`
`active. Hollander Decl. Ex. 6 (tabuchiamerica.com). Moreover, the actual website of Tabuchi
`
`Electric (“http://www.tabuchi-us.com”) shows a location in West Virginia, not in NDCA.
`
`Hollander Decl. Ex. 7 (tabuchi-us.com). Second, Samsung’s citation of Mojo Mobility appears to
`
`be a reference to asserted prior art U.S. Patent Nos. 8,169,185 and 9,178,369, which list Mojo
`
`Mobility as their assignee. Dkt. No. 40-16 (Westin. Decl. Ex. 17). However, Samsung asserts that
`
`these two patents in its invalidity contentions against only U.S. Pat. No. 10,424,941, which has
`
`been dismissed from this case. Hollander Decl. Ex. 8 (Samsung Invalidity Contentions Ex. E-4
`
`Cover); Hollander Decl. Ex. 9 (Samsung Invalidity Contentions Ex. E-10 Cover); Dkt. No. 47.
`
`Mojo Mobility is thus no longer relevant to this case.
`
`iii.
`
`Cost of attendance of willing witnesses
`
`The only willing witnesses Samsung has disclosed to Scramoge actually reside in Texas,
`
`not NDCA:
`
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`6
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`•
`
`•
`
`•
`
`Holland Decl. Ex. 3 (Interrogatory No. 2) at 11; Ex. 10 (Samsung’s Initial Disclosures) at 15; Ex.
`
`11 (Samsung’s First Amended Initial Disclosures); Ex. 12 (
`
`).
`
` It is significantly cheaper and less inconvenient for these
`
` to WDTX than to NDCA, and so this factor
`
`relevant witnesses to travel
`
`weighs against transfer.
`
`Samsung fails to properly identify any witnesses in NDCA with particularity. Samsung
`
`again relies on the U.S. outposts of LG Innotek
`
` and on the supposed prior art reference
`
`companies Tabuchi Electric Company of America and Mojo Mobility. As explained above, those
`
`arguments do not tilt this factor in favor of NDCA, and additionally it is improper to double-count
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`7
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`third-party unwilling witnesses in this analysis of this factor of willing witnesses. See AGIS
`
`Software Dev. LLC v. Huawei Device USA Inc., No. 2:17-CV-00513-JRG, 2018 WL 2329752, at
`
`*3 (E.D. Tex. May 23, 2018) (“These factors do not permit a single source of proof or witness to
`
`be ‘double counted’ or unduly influence the analysis”).
`
`And Samsung’s throw-away argument that NDCA is less inconvenient for its Korean
`
`witnesses should not be credited. Mot. at 9. Samsung’s “theory is contradicted by In re Genentech,
`
`Inc., in which the Federal Circuit noted that overseas witnesses are ‘required to travel a significant
`
`distance no matter where they testify,” so additional travel within the United States is not
`
`significant to a transfer analysis.” Camatic Proprietary Ltd. v. Irwin Seating Co., No. 3:16-CV-
`
`0795-M, 2017 WL 2362029, at *5 (N.D. Tex. May 31, 2017) (quoting In re Genentech, Inc., 566
`
`F.3d 1338, 1344 (Fed. Cir. 2009)).
`
`iv.
`
`Judicial economy strongly weighs against transfer in light of two
`co-pending actions involving the same patents pending before
`this Court
`
`
`
`When considering the private interest factors, courts must consider “all other practical
`
`problems that make trial of a case easy, expeditious and inexpensive.” EcoFactor, 2021 WL
`
`1535413, at *5 (citing Volkswagen II, 545 F.3d at 314). “Particularly, the existence of duplicative
`
`suits involving the same or similar issues may create practical difficulties that will weigh heavily
`
`in favor or against transfer.” Id. (citation omitted); see also In re Intel Corp., No. 2021-168, 2021
`
`WL 4427875, at *3 (Fed. Cir. Sept. 27, 2021) (“The district court also reasonably found that
`
`keeping the cases against Samsung and Intel before one court would preserve judicial economy
`
`and minimize the potential for inconsistent judgments.”). Indeed, the “existence of multiple
`
`lawsuits involving the same issues is a paramount consideration when determining whether a
`
`
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`8
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`transfer is in the interest of justice.” In re Volkswagen of Am., Inc., 566 F.3d 1349, 1351 (Fed. Cir.
`
`2009).
`
`Here, there are two other cases pending before this Court that involve the same patents,
`
`accuse similar wireless charging technology of infringement, and are proceeding on the same case
`
`schedule.1 The Google case involves three overlapping patents (U.S. Patent Nos. 9,997,962;
`
`9,843,215; and 10,367,370) and the Apple case involves two overlapping patents (the ’962 Patent
`
`and the ’215 Patent). “The cases involve overlapping issues, such as claim construction, invalidity,
`
`prior art, conception, and reduction to practice.” EcoFactor, 2021 WL 1535413, at *5. Indeed,
`
`claim construction has already been consolidated with the Google and Apple cases, and the Court
`
`has scheduled the Markman hearing for May 23, 2022. Dkt. No. 55. And “[t]his Court has
`
`recognized that ‘judicial economy favors having the infringement of the same patent considered
`
`by one judge.’” EcoFactor, 2021 WL 1535413, at *5 (citation omitted). Accordingly, “this factor
`
`weighs against transfer because keeping the co-pending litigation that the same patents in this
`
`Court will promote judicial efficiency.” CPC Patent Techs., Dkt. No. 82, at 14.
`
`Samsung attempts to down-play the weighing of this factor against transfer by arguing that
`
`“if the Court grants Apple and Google’s motions [to transfer], this case should be transferred to
`
`effect a consolidation of these related cases.” Mot. at 9-10. But the case Samsung cites in support,
`
`DynaEnergetics Eur. GmbH v. Hunting Titan, Inc., No. 6:20-CV-00069-ADA, 2020 WL 3259807
`
`(W.D. Tex. June 16, 2020), did not involve co-pending motions to transfer but rather stands for
`
`the unremarkable proposition that an existing related lawsuit in the transferee venue weighs in
`
`
`1 See Scramoge Tech. Ltd. v. Google LLC, No. 6:21-cv-00616, and Scramoge Tech. Ltd. v. Apple
`Inc., No. 6:21-cv-00579.
`
`
`
`9
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`favor of judicial economy. Id. at *5. Scramoge has no related cases in NDCA, so DynaEnergetics
`
`is inapplicable.
`
`B.
`
`The Public Interest Factors Weigh Against Transfer
`
`i.
`
`This case will proceed to trial faster in this District
`
`Recent statistics show there is a substantial difference in docket congestion between
`
`WDTX and NDCA: “When comparing times to trial, this Court finds that the administrative
`
`difficulties in NDCA weigh against transfer when compared to the administrative difficulties in
`
`WDTX.” CPC Patent Techs., Dkt. No. 82, at 15. This factor weighs against transfer to NDCA.
`
`ii.
`
`Local interest
`
`This factor weighs against transfer because Samsung (specifically, SEC) has a very large
`
`presence in WDTX. Hollander Decl. Ex. 4 (Samsung Press Release). Samsung’s WDTX activities
`
`encompass mobile applications, id., and the accused products are mobile phones. Dkt. No. 18 ¶
`
`10. These Samsung contacts qualify as local interest in WDTX. See In re Acer Am. Corp., 626
`
`F.3d 1252, 1256 (Fed. Cir. 2010) (“the companies alleged to cause that harm are all residents of
`
`that district”).
`
`All Samsung can point to in NDCA are the same arguments addressed above regarding
`
`“the American arm of the original assignee of the patents, prior art authors and inventors, and a
`
` located in N.D. Cal.” Mot. at 10.
`
`Scramoge incorporates its prior rebuttals regarding LG Innotek, Tabuchi, Mojo Mobility, and
`
` explaining that none amounts to a genuine NDCA contact for purpose of this case.
`
`iii.
`
`Familiarity of the forum with law-at-issue
`
`This factor is neutral.
`
`10
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`iv.
`
`Conflict of laws
`
`This factor is neutral.
`
`IV.
`
`CONCLUSION
`
`At bottom, this is a lawsuit involving the importation of products into the United States
`
`, which are accused
`
`of infringing patents that originated in Korea. There is no substantial connection to Samsung’s
`
`preferred venue NDCA, whereas Samsung has a very substantial presence in Texas and this
`
`District. These circumstances result in all non-neutral factors weighing against transfer to NDCA.
`
`Samsung fails to show that NDCA is the clearly more convenient venue, and its motion should be
`
`denied.
`
`Dated: April 21, 2022
`
`Respectfully submitted,
`
`/s/ Brett E. Cooper
`
`Reza Mirzaie (CA SBN 246953)
`rmirzaie@raklaw.com
`Marc A. Fenster (CA SBN 181067)
`mfenster@raklaw.com
`Brett E. Cooper (NY SBN SBN 4011011)
`bcooper@raklaw.com
`Brian D. Ledahl (CA SBN 186579)
`bledahl@raklaw.com
`Seth Hasenour (TX SBN 24059910)
`shasenour@raklaw.com
`James A. Milkey (CA SBN 281213)
`jmilkey@raklaw.com
`Drew B. Hollander (NY SBN 5378096)
`dhollander@raklaw.com
`Christian W. Conkle (CA SBN 306374)
`cconkle@raklaw.com
`Jonathan Ma (CA SBN 312773)
`jma@raklaw.com
`
`RUSS AUGUST & KABAT
`12424 Wilshire Blvd. 12th Floor
`
`11
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`Los Angeles, CA 90025
`Phone: (310) 826-7474
`Facsimile: (310) 826-6991
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`Attorneys for Plaintiff Scramoge Technology
`Limited
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`12
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`Scramoge Technology Ltd.
`Ex. 2022 - Page 16
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`Case 6:21-cv-00454-ADA Document 75 Filed 04/28/22 Page 17 of 17
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the above and foregoing document has been
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`served on all counsel of record on April 21, 2022.
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`/s/Brett E. Cooper
`Brett E. Cooper
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`13
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`Scramoge Technology Ltd.
`Ex. 2022 - Page 17
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