Case 6:21-cv-00985-ADA Document 43 Filed 04/29/22 Page 1 of 17
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`
`JAWBONE INNOVATIONS, LLC,
`Plaintiff,
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` Case No. 6:21-CV-00985-ADA
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`
`v.
`GOOGLE LLC,
`
`Defendant.
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`
`
`DEFENDANT GOOGLE LLC’S OPPOSED MOTION TO TRANSFER
`TO THE NORTHERN DISTRICT OF CALIFORNIA
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`Pursuant to 28 U.S.C. § 1404(a), Defendant Google LLC (“Google”) respectfully
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`requests that the Court transfer this action, filed by Plaintiff Jawbone Innovations, LLC (“JI”), in
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`the United States District Court for the Western District of Texas (WDTX), to the United States
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`District Court for the Northern District of California (NDCA).
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`I.
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`INTRODUCTION
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`This patent infringement dispute involves witnesses and evidence primarily located in
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`NDCA, not WDTX. Key Google personnel with knowledge about the technology, financials,
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`and marketing of the accused products work in NDCA. The important documents and
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`prototypes are also maintained at Google’s headquarters in NDCA. At least fifteen third-party
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`witnesses—including the inventors of the patents-in-suit, persons knowledgeable about the
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`prosecution and abandonment of the patents-in-suit, and third-party companies that provide
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`algorithms used in the accused products—are also located in NDCA. In fact, to Google’s
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`knowledge, there is not a single Google employee or third party in WDTX who is likely to be a
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`trial witness. Nor does JI have a legitimate reason to file this action in WDTX. JI is the alter
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`ego of a Maryland entity and only acquired the patents shortly before filing this lawsuit. Where,
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`as here, “the transferee venue is ‘clearly more convenient’ than the venue chosen by the
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`plaintiff,” the case should be transferred. In re Nintendo Co., 589 F.3d 1194, 1197 (Fed. Cir.
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`2009) (quoting In re Genentech, Inc., 566 F.3d 1338, 1342 (Fed. Cir. 2009)).
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`II.
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`FACTUAL BACKGROUND
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`JI accuses Google of infringing nine patents.1 ECF No. 23 (Am. Compl.). According to
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`1 The asserted patents include U.S. Patent Nos. 8,019,091 (the “’091 Patent”), 7,246,058 (the
`“’058 Patent”), 8,280,072 (the “’072 Patent), 8,321,213 (the “’213 Patent”), 8,326,611 (the “’611
`Patent”), 10,779,080 (the “’080 Patent”), 11,122,357 (the “’357 Patent”), 8,467,543 (the “’543
`Patent”), and 8,503,691 (the “’691 Patent”).
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`JI’s first amended complaint (“Complaint”), these patents generally describe acoustic noise
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`suppression and voice activity detection. Id. JI accuses Google earbuds (e.g., Pixel Buds),
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`smartphones (e.g., Pixel phones), smart speakers and displays (e.g., Home devices), and software
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`with noise suppression functionality, of infringing the patents-in-suit (the “Accused Products”).
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`Id.; see also Decl. of Rylee Kercher Olm in Supp. of Mot. to Transfer (“Olm Decl.”), Ex. 1.
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`A.
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`Google’s witnesses and documents are in NDCA.
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`Google’s Mountain View, California headquarters and most of its U.S. workforce are in
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`NDCA. See Decl. of Michelle True in Supp. of Mot. to Transfer (“True Decl.”) ¶ 3.2 Moreover,
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`the Google witnesses with relevant technical knowledge about the Accused Products are in
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`NDCA. Id. ¶¶ 6-20. Specifically, Google identified six key technical witnesses who lead the
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`Hearables, Pixel Buds Product Design, Pixel Audio Systems, Acoustics for Pixel, Nest for
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`Acoustics, and Front-End Modeling teams. Id. ¶¶ 7, 8, 12, 13, 17, 20. These teams are
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`primarily located in NDCA, and none of their members are in Texas. Id. Google also identified
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`six key financial and marketing witnesses, all of whom are in NDCA. Id. ¶¶ 10, 15, 19.
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`Additionally, JI relies in its Complaint and Infringement Contentions on various articles
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`authored by Google employees. While Google disputes the relevance or admissibility of these
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`articles, nine of their authors are current Google employees in NDCA; none are in Texas. Id. ¶¶
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`21-23. This list includes the sole author of “Meet the New Google Pixel Buds,” which JI uses to
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`support its contention that accused Pixel Buds infringe the ’091 and ’058 Patents. See, e.g., Am.
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`Compl. ¶ 58; True Decl. ¶ 21. It also includes the first author of “Neural Network Adaptive
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`Beamforming for Robust Multichannel Speech Recognition,” which JI uses to support its
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`2 Although Google has an office in Austin, Texas, it houses only
`employees. Id. ¶ 4.
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` of Google’s U.S.
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`allegation that the Pixel Buds, Nest, and Home products infringe the ’213, ’611, ’357, and ’091
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`Patents. See, e.g., Am. Compl. ¶¶ 41, 59, 102, 103, 116, 117; True Decl. ¶ 22. Additionally,
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`eight authors of “Acoustic Modeling for Google Home”—which JI relies on to support its claim
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`that the accused Nest and Home products infringe the ’213, ’611, ’058, ’080, ’691, ’357 and ’072
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`Patents—are in NDCA. See, e.g., Am. Compl. ¶¶ 102, 116; True Decl. ¶ 23. Neither party has
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`identified any Google employees in Texas who are likely to testify on technical, financial, or
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`marketing aspects of the Accused Products. True Decl. ¶ 24.
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`As with the 20 identified Google witnesses, relevant technical, financial, and marketing
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`documents for the Accused Products are also created and maintained by employees in and
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`around NDCA. Id. ¶ 25. None of these documents are created or maintained in WDTX. Id.
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`¶ 26. Google’s technical witnesses also develop and test early- and late-stage prototypes of the
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`Accused Products in Google labs in NDCA, not WDTX. Id. ¶¶ 7, 8, 12, 13, 17. Additionally,
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`Google’s technical witnesses also possess relevant hardcopy documents, such as development
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`and research notebooks, in their NDCA offices. Id. ¶¶ 8, 12, 20.
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`B.
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`JI’s manufactured connections to WDTX are minimal.
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`JI is a non-practicing entity with its alleged principal place of business in Waco, Texas.
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`See Am. Compl. ¶ 1. JI was formed in February 2021 and was assigned the patents-in-suit
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`several months thereafter. Olm Decl., Exs. 2, 3. No JI employee was involved in the
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`development of the patented technology. See Am. Compl., Exs. A-I. Thus, there is no indication
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`that there is any relevant evidence located in WDTX.
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`JI’s only connection to Texas was manufactured for the purpose of venue selection. JI
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`appears to be an alter ego of YE Ventures LLC, a Maryland entity with its principal office at 301
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`South Fremont Avenue in Baltimore. Olm Decl., Exs. 2 & 4. York Eggleston and Carroll James
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`Harris formed YE Ventures LLC, and Keith Machen is its current registered agent. Id., Exs. 2, 3,
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`4, 44, & 45. Messrs. Eggleston and Machen are listed as the managers for several other non-
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`practicing entities in Texas—Granite Vehicle Ventures LLC, Marble VOIP Partners LLC, Cobalt
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`Navigation Ventures LLC, and Graphite Charging Company LLC—all of which list the
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`organizer address as 301 South Fremont Avenue in Baltimore, Maryland. Id., Ex. 5. JI’s
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`certificate of formation similarly lists York Eggleston as its manager at the same address in
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`Baltimore. Id., Ex. 2. Mr. Eggleston and YE Ventures thus appear to control JI’s operations
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`from Maryland. JI does not appear to have any employees in WDTX, and notably, JI’s hiring is
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`managed by Andrew Cohen, who is President of YE Ventures and located in New York. Id., Ex.
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`6.
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`C.
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`Numerous third-party witnesses are in NDCA.
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`1.
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`Third parties knowledgeable about the invention and prosecution of
`the patents-in-suit reside in NDCA.
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`Whereas a majority of the third parties involved in the alleged invention, development,
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`and prosecution of the patents-in-suit are in NDCA, not a single one is in WDTX. The
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`technology of the patents-in-suit was developed by AliphCom, Inc.—a now-liquidated California
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`company formerly headquartered in San Francisco. Am. Compl. at ¶ 19; Olm Decl., Ex. 39. The
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`CEO and founder of AliphCom—Hosain Rahman—remains in San Francisco. Olm Decl., Ex. 7.
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`Rahman represented AliphCom in several financial transactions involving the asserted patents.
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`Id., Exs. 8 at 21 & 9 at 13. Four of the six inventors of the patents-in-suit currently also reside
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`in NDCA—Eric F. Breitfeller, Nicolas J. Petit, Zhinian (Eric) Jing, and Andrew E. Einaudi. Am.
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`Compl., Exs. A–I; Olm Decl., Exs. 10–13. JI contends that Mr. Breitfeller informed Google of
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`the patents-in-suit when he was a Google employee. Am. Compl. ¶ 27. The other two inventors
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`reside in Northfield, Minnesota and London. Olm Decl., Exs. 14 & 15. Notably, the majority of
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`the patents-in-suit were developed while these inventors resided in NDCA. Am. Compl., Exs.
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`A–I. And Scott Kokka—the only attorney who prosecuted all nine patents-in-suit—is also
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`located in NDCA. Id., Olm Decl., Exs. 16 & 17. Five other prosecuting attorneys likewise
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`reside or work in NDCA, not WDTX—Mr. Trueman Denny, Mr. Howard Yuan, Ms. Chien-Ju
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`(Alice) Chuang, Ms. Barbara Courtney, and Mr. Rick Gregory. Id., Exs. 18–20, 34–36, 38.
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`2.
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`Third parties with relevant knowledge about the Accused Products
`reside in NDCA.
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`The accused Pixel Buds and Pixel phones utilize third-party algorithms from
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`. True Decl. ¶¶ 9, 14.
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` have offices in
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`NDCA, and
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` is headquartered in
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`. Olm Decl., Exs. 21–23, 37.3
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`Google’s primary points of contact for
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` are also in California. True
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`Decl. ¶ 14. Additionally, three former Google employees who authored the “Acoustic Modeling
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`for Google Home” paper currently reside in NDCA, Olm Decl., Exs. 24–26, and none of the
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`other authors reside in Texas, id., Exs. 40-41; True Decl. ¶ 23.
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`III. LEGAL STANDARD
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`To evaluate transfer under § 1404(a), courts first consider “whether a civil action ‘might
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`have been brought’ in the destination venue.” In re Volkswagen of Am., Inc. (“Volkswagen II”),
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`545 F.3d 304, 312 (5th Cir. 2008) (en banc) (quoting 28 U.S.C. § 1404(a)). If so, the court
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`weighs four private and four public interest factors:
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`(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. . . . [5] the administrative difficulties flowing from
`court congestion; [6] the local interest in having localized interests decided at home;
`[7] the familiarity of the forum with the law that will govern the case; and [8] the
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`5
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`3
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`C.
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`The private interest factors strongly favor transfer.
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`1.
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`The cost of attendance for willing witnesses heavily favors transfer.
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`The convenience of witnesses “is probably the single most important factor[.]” In re
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`Genentech, 566 F.3d at 1343. The analysis “must consider” the convenience of third-party
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`witnesses as well as “possible party witnesses.” In re Samsung Elecs. Co., 2 F.4th 1371, 1379
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`(Fed. Cir. 2021), cert. denied, 142 S. Ct. 1445 (2022). Under the Fifth Circuit’s 100-mile rule,
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`“[w]hen the distance between an existing venue for trial . . . and a proposed venue under
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`§ 1404(a) is more than 100 miles, the factor of inconvenience to witnesses increases in direct
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`relationship to the additional distance to be traveled.” Volkswagen I, 371 F.3d at 204-05.
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`However, witnesses that reside distant from both forums “will be inconvenienced by extensive
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`travel regardless of the forum and thus ‘the 100-mile rule should not be rigidly applied.’”
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`10Tales, Inc. v. TikTok Inc., No. 6:20-CV-00810-ADA, 2021 WL 2043978, at *4 (W.D. Tex.
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`May 21, 2021) (quoting In re Genentech, 566 F.3d at 1344)). Here, the vast majority of key
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`witnesses are in Northern California such that it would be far more convenient for these
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`witnesses to testify in NDCA.
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`Google’s key employees with technical, financial, and marketing knowledge of the
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`Accused Products are all in NDCA. These include six engineers with essential technical
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`knowledge regarding the Accused Products and six key marketing and financial witnesses. See
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`supra Section II.A; see also In re Genentech, 566 F.3d at 1343-44 (defendant need only show
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`potential witnesses have “relevant and material information”). Moreover, JI’s Complaint and
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`Infringement Contentions rely on articles authored by nine current Google employees in NDCA.
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`See supra section II.A. Because Mountain View is roughly 1,700 miles away from Waco, travel
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`for these 20 employees will involve air travel, at least one hotel night, multiple days of missed
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`work, and significant expense. Olm Decl., Ex. 27. The inconvenience of this forum therefore
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`favors transfer. Volkswagen I, 371 F.3d at 205; In re Hulu, LLC, No. 2021-142, 2021 WL
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`3278194, at *5 (Fed. Cir. Aug. 2, 2021) (“[D]iscounting the inconvenience to Hulu’s witnesses is
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`fundamentally at odds with the purpose of a transfer for convenience of the witnesses.”). By
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`contrast, there are no known party witnesses in WDTX.
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`Transfer is thus appropriate because Google has “identified a significant number of its
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`own employees as potential witnesses who reside in the [NDCA].” In re Adobe Inc., 823 F.
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`App’x 929, 931 (Fed. Cir. 2020), cert. denied, 141 S. Ct. 2469 (2021); see also In re Google LLC
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`(“In re Google III”), No. 2021-171, 2021 WL 4592280, at *4 (Fed. Cir. Oct. 6, 2021); In re
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`Hulu, LLC, 2021 WL 3278194, at *5 (finding in favor of transfer where an “overwhelming
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`number of potential witnesses from Hulu [were] in or near California compared to the two from
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`SITO in Texas”).4
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`2.
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`Availability of compulsory process to secure unwilling witnesses
`strongly favors transfer.
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`A district court may compel a witness to appear so long as the proceeding takes place
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`within 100 miles of the witness’s residence or place of business. Fed. R. Civ. P. 45(c). Thus,
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`WDTX courts cannot compel any of the known third-party witnesses to attend a hearing or trial
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`in this case. Accordingly, this factor “weigh[s] heavily in favor of transfer” as “more third-party
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`witnesses reside within the transferee venue than reside in the transferor venue.” In re Apple,
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`Inc. (“In re Apple I”), 581 F. App’x 886, 889 (Fed. Cir. 2014).
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`4 The convenience of relevant third-party witnesses in NDCA, identified above in Section II.C.,
`would weigh further in favor of transfer. However, as Google does not currently know whether
`any are willing witnesses, it has discussed such third-party witnesses in connection with the
`availability of compulsory process factor, below. See Super Interconnect Techs. v. Google LLC,
`6:21-cv-259-ADA, Dkt. 49 at 6 (W.D. Tex. Nov. 8, 2021).
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`Fifteen third-party witnesses with relevant information regarding the suit are in Northern
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`California. See supra Section II.C. First, four of the six inventors of the patents-in-suit
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`currently reside in NDCA, including Mr. Breitfeller, who JI alleges informed Google of the
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`patents-in-suit. Olm Decl., Exs. 10–13. Second, the CEO and founder AliphCom, Hosain
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`Rahman, resides in NDCA. Id., Ex. 7. Mr. Rahman will have relevant and material information
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`about the valuation of the asserted patents as he was personally involved in several transactions
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`involving the asserted patents. Id., Exs. 8 & 9. Third, Mr. Kokka—the only attorney who
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`prosecuted all nine asserted patents—and five other prosecuting attorneys reside or work in
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`NDCA. Id., Exs. 16–20, 34–36, 38. Fourth, Google licenses
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` from three companies that are headquartered in or
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`have offices in California—
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`—and Google’s primary
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`contact at
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` is in NDCA. Olm Decl., Exs. 21-23. Fifth, three former Google
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`employees mentioned in JI’s Complaint are currently in NDCA. Olm Decl., Exs. 24–26. These
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`individuals authored an article cited by JI to support its infringement contentions. See, e.g., Am.
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`Compl. In contrast, Google is not aware of a single non-party witness in WDTX.
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`Given this Court’s inability to compel these 15 third-party witnesses to testify, this factor
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`weighs substantially in favor of transfer. See In re Hulu, LLC, 2021 WL 3278194, at *4 (this
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`factor favors transfer when “movant has identified multiple third-party witnesses and shown that
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`they are overwhelmingly located within the subpoena power of only the transferee venue”).
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`3.
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`Relative ease of access to sources of proof heavily favors transfer.
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`Under this factor, courts must consider the location of all documents and physical
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`evidence. See In re Genentech, Inc., 566 F.3d at 1345-46. “In patent infringement cases, the
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`bulk of the relevant evidence usually comes from the accused infringer. Consequently, the place
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`where the defendant’s documents are kept weighs in favor of transfer to that location.” In re
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`Nintendo, 589 F.3d at 1199.
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`The vast majority of the research, design, development, and testing related to the Accused
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`Products occurs in Mountain View, California. True Decl. ¶¶ 6–8, 11–13, 16–17, 20. Thus, the
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`relevant technical electronic documents are primarily created and maintained in Mountain View,
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`where the custodians of those documents are located. See Id., ¶ 25; see also In re Google LLC
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`(“In re Google IV”), No. 2021-178, 2021 WL 5292267, at *2 (Fed. Cir. Nov. 15, 2021) (district
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`court erred in not “considering the location of document custodians and location where
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`documents are created and maintained, which may bear on the ease of retrieval”). Google
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`employees have also identified potentially relevant hardcopy documents, including development
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`and research notebooks, that are located in Mountain View. True Decl., ¶¶ 8, 12, 20. Google
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`also develops, tests, and stores prototypes of the Accused Products in its Mountain View offices.
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`Id. ¶¶ 7–8, 12–13, 17. For example, Google tests prototypes for the accused Pixel Buds and
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`Pixel phones in its Mountain View labs. Id. ¶¶ 7–8, 12–13. Google’s financial and marketing
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`documents relevant to the Accused Products are also created and maintained by employees
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`located in NDCA. Id. ¶¶ 10, 15, 19. By contrast, Google has not identified any relevant
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`documents that are created or maintained in WDTX, nor is Google aware of any relevant
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`prototypes in WDTX. Id. ¶¶ ¶¶ 7–8, 12–13, 17, 26.
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`As the accused infringer, Google will have the bulk of relevant documents. In contrast, JI
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`was formed in 2021 and acquired the patents-in-suit shortly before filing this lawsuit. See
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`discussion supra Section II.B. To the extent JI possesses any relevant records, these records will
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`likely be stored in Maryland, where JI’s alter ego is located. Id.
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`Additionally, the many-third party witnesses in NDCA will likely have evidence relevant
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`to the invention and validity of the patents-in-suit, and the alleged infringement of the Accused
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`Products. These witnesses include four of the inventors of the patents-in-suit, the CEO of the
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`company that developed the technology of the patents-in-suit, six attorneys who prosecuted the
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`patents-in-suit, two companies who provide third-party algorithms for the Accused Products, and
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`three former Google employees who authored a paper on which JI relies in its infringement
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`allegations. See supra Section II.C.
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`Because the relevant documents in this case are predominately located in NDCA, the
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`relative ease of access to sources of proof factor weighs strongly in favor of transfer. 10Tales,
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`Inc., 2021 WL 2043978, at *2.
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`4.
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`There are no practical problems with transferring this case.
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`The fourth private interest factor considers any practical problems, with a focus on
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`“considerations of judicial economy and the existence of co-pending litigation.” Uniloc USA
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`Inc. v. Box, Inc., No. 1:17-CV-754-LY, 2018 WL 2729202, at *4 (W.D. Tex. June 6, 2018).
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`First, as to judicial economy, “this Court has previously held that [this] factor favors
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`transfer when most witnesses are present in the transferee forum and the plaintiff has no presence
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`in the Western District.” Correct Transmission LLC v. ADTRAN, Inc., No. 6:20-CV-00669-
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`ADA, 2021 WL 1967985, at *5 (W.D. Tex. May 17, 2021). That is the case here: the identified
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`witnesses are in NDCA and none are in WDTX, as JI only has a recently manufactured presence
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`in WDTX. Moreover, the suit is in its earliest stages5 such that the Court has not had to expend
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`5 JI filed its first amended complaint on December 23, 2021, and claim construction briefing and
`discovery have not started.
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`time analyzing the asserted patents. See Voxer, Inc. v. Facebook, Inc., No. 6:20-cv-00011-ADA,
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`2020 WL 3416012, at *5 (W.D. Tex. June 22, 2020).
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`Second, that JI filed another case in WDTX involving common patents-in-suit against
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`Apple does not weigh against transfer.6 See In re NetScout Sys., Inc., No. 2021-173, 2021 WL
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`4771756, at *5 (Fed. Cir. Oct. 13, 2021) (rejecting that “the mere co-pendency” of cases “in a
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`particular district automatically tips the balance in the non-movant’s favor”); In re Apple Inc.
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`(“In re Apple II”), No. 2021-181, 2021 WL 5291804, at *4 (Fed. Cir. Nov. 15, 2021) (where co-
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`pending “suit involves different defendants and different accused products,” it is likely to involve
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`“significantly different discovery, evidence, proceedings, and trial” and therefore “any
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`‘incremental gains in keeping [this] case in the [WDTX]’ are insufficient ‘to justify overriding
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`the inconvenience to the parties and witnesses’”) (quoting In re Samsung, 2 F.4th at 1380)).
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`Accordingly, this factor weighs heavily in favor of transfer because there are no practical
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`problems with transferring this case.
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`D.
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`The public interest factors also favor transfer.
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`1.
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`Court congestion is neutral.
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`“To the extent that court congestion is relevant, the speed with which a case can come to
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`trial and be resolved may be a factor.” In re Genentech, 566 F.3d at 1347. As the “most
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`speculative” factor, however, comparative administrative difficulties should not be given
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`dispositive weight, and thus cannot prevent transfer where, as here, “several relevant factors
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`6 Apple also intends to move to transfer to NDCA. Olm Decl. ¶ 2. JI also sued Amazon and
`Samsung in the Eastern District of Texas over the same asserted patents; Amazon has filed a
`motion to transfer the case to NDCA and Samsung has expressed its intention to do so as well.
`Id. Thus, transferring this case could allow for the consolidation of all four pending cases in the
`most-convenient district. See Affinity Labs of Tex., LLC v. Blackberry Ltd., No. 6:13-CV-362,
`2014 WL 10748106, at *7 (W.D. Tex. June 11, 2014) (transfer would further judicial economy
`where related suits were filed in both East and West Texas).
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`weigh in favor of transfer and others are neutral.” Id.; see also In re Google II, 2021 WL
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`4427899, at *7. Moreover, the “prospective speed with which [a] case might be brought to trial”
`
`is not “of particular significance” where the plaintiff, as here, “does not practice the patent and
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`therefore [] is not in need of a quick resolution of [a] case because its position in the market is
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`threatened.” In re WMS Gaming Inc., 564 F. App’x 579, 581 (Fed. Cir. 2014); see also In re
`
`Juniper Networks I, Inc., 14 F. 4th 1313, 1322 (Fed. Cir. 2021) (same).
`
`Here, transfer is appropriate because “the [WDTX] and the [NDCA] show no significant
`
`differences in caseload or time-to-trial statistics.”7 In re Apple II, 2021 WL 5291804, at *4
`
`(quoting In re Juniper Networks I, 14 F.4th at 1322). Indeed, this Court has recently recognized
`
`that this factor is neutral as to a transfer from WDTX to NDCA where, as here, “neither
`
`discovery nor a Markman hearing have occurred,” such that “transfer at this stage of litigation
`
`would not likely create any meaningful delays.” 10Tales, Inc., 2021 WL 2043978, at *5. This
`
`Court should therefore conclude, consistent with 10Tales, that court congestion does not weigh
`
`against transfer from WDTX to NDCA. See e.g., In re Google II, 2021 WL 4427899, at *7
`
`(“[S]peculation about what might happen with regard to the speed of adjudication is plainly
`
`insufficient to warrant keeping this case in the Texas forum given the striking imbalance
`
`favoring transfer based on the other factors.”). Furthermore, the Federal Circuit has instructed
`
`that it would be “improper to assess the court congestion factor based on the fact” that this Court
`
`
`
`7 Here, as in In re Google II, “the median time to trial for all judges in the two districts is not
`dramatically different.” 2021 WL 4427899, at *7 n.3. Notably, NDCA appears to currently
`have fewer patent cases (122) than WDTX (465), and NDCA has more judges to handle those
`cases than the Waco Division of WDTX. See Olm Decl., Exs. 28, 29, 42 & 43. This Court and
`NDCA have also had similar median times to trial since September 2018 in civil cases generally,
`see id., Exs. 30 & 31 (867 days in NDCA versus 702 days in this Court), and in patent cases
`specifically, see id. ¶, Exs. 32 & 33 (802 days in NDCA versus 644 days in this Court).
`
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`already issued a scheduling order. In re Juniper I, 14 F.4th at 1322. This factor is therefore
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`neutral.
`
`2.
`
` NDCA has a strong local interest in this dispute.
`
`The “local interest in having localized interests decided at home weighs heavily in favor
`
`of the [NDCA],” where events at issue in the case occurred. Volkswagen I, 371 F.3d at 206
`
`(internal citation omitted). While the sale of an accused product offered nationwide does not
`
`give rise to a substantial interest in any single venue, connections between the transferee venue
`
`and the events giving rise to a suit favor transfer. In re Acer Am. Corp., 626 F.3d 1252, 1256
`
`(Fed. Cir. 2010), as amended (Jan. 13, 2011). In a patent infringement suit, connections between
`
`the transferee venue and the events giving rise to the suit include the location of inventors and
`
`patent prosecution counsel and where the products were designed and developed. See id; see
`
`also In re Samsung, 2 F.4th at 1380.
`
`Here, all these considerations favor NDCA as the venue with superior ties to the lawsuit.
`
`First, most witnesses—including inventors and patent prosecution counsel—are in NDCA, none
`
`are in WDTX. See supra Sections II.A. and II.C. Second, and most importantly, Google
`
`employees “researched, designed and developed” the relevant technical aspects of the Accused
`
`Products in NDCA, In re Samsung, 2 F.4th at 1380, and it is those employees’ work and
`
`reputation that has been called into question, In re Acer Am. Corp., 626 F.3d at 1256 (“[I]f there
`
`are significant connections between a particular venue and the events that gave rise to a suit, this
`
`factor should be weighed in that venue’s favor.”) (citing In re Hoffmann-La Roche Inc., 587 F.3d
`
`1333, 1338 (Fed. Cir. 2009)).
`
`In contrast to the significant connection between this litigation and NDCA, there is no
`
`meaningful connection to WDTX. The key witnesses are not in WDTX, and Google’s presence
`
`in Austin is not materially relevant to the Accused Products. In re Google II, 2021 WL 4427899
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`Case 6:21-cv-00985-ADA Document 43 Filed 04/29/22 Page 16 of 17
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`at *6 (concluding that local interest factor should be weighted “strongly in favor of transfer”
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`when “accused products were designed and developed in the transferee venue and are not related
`
`to Google’s presence in Texas”).
`
` JI was not involved in the invention of the asserted patents; rather, the patents were
`
`developed by a company and inventors in NDCA. JI therefore is unlikely to have key witnesses
`
`or any witnesses with physical evidence in WDTX. See supra at Section II.C. Moreover, JI’s
`
`connection to WDTX appears to be manufactured for purposes of litigation. Indeed, its
`
`connection to Texas as a whole “appears to be . . . ephemeral, and an artifact of litigation,” which
`
`weighs in favor of transfer. In re Zimmer Holdings Inc., 609 F.3d 1378, 1381 (Fed. Cir. 2010);
`
`see supra Section II.C. Moreover, the Supreme Court has explicitly condemned venue
`
`manipulation of this kind. Hertz Corp. v. Friend, 559 U.S. 77, 97 (2010) (“If the record reveals
`
`attempts at manipulation—for example, that the alleged ‘nerve center’ is nothing more than a
`
`mail drop box [or] a bare office. . . —the courts should instead take as the ‘nerve center’ the
`
`place of actual direction, control, and coordination.”); see also In re Microsoft Corp., 630 F.3d
`
`1361, 1364 (Fed. Cir. 2011) (applying holding to § 1404(a) analysis).
`
`Therefore, the local interest factor “strongly favors transfer.” See Datascape Ltd. v. Dell
`
`Techs., Inc., No. 6:19-CV-00129-ADA, 2019 WL 4254069, at *3 (W.D. Tex. June 7, 2019).
`
`3.
`
`The remaining public interest factors are neutral.
`
`The factors concerning familiarity of the forum with the law that will govern the case and
`
`conflicts of law or the need to apply foreign law are neutral.
`
`V.
`
`CONCLUSION
`
`This suit has no meaningful connection to the Waco Division of WDTX. Google
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`respectfully requests an order transferring this case to NDCA.
`
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`Case 6:21-cv-00985-ADA Document 43 Filed 04/29/22 Page 17 of 17
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`
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`Dated: April 29, 2022
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`
`
`
`
`By:
`
`
`Respectfully submitted,
`
`KEKER, VAN NEST & PETERS LLP
`
`/s/ Christa M. Anderson
`Christa M. Anderson (admitted pro hac vice)
`canderson@keker.com
`Reid Mullen (admitted pro hac vice)
`rmullen@keker.com
`Erin Meyer (admitted pro hac vice)
`emeyer@keker.com
`David J. Rosen (admitted pro hac vice)
`drosen@keker.com
`Connie P. Sung (admitted pro hac vice)
`csung@keker.com
`Luis Gabriel Hoyos (admitted pro hac vice)
`lhoyos@keker.com
`Rylee Kercher Olm (admitted pro hac vice)
`rolm@keker.com
`Erica Miranda (admitted pro hac vice)
`emiranda@keker.com
`633 Battery Street
`San Francisco, CA 94111-1809
`Telephone: 415 391 5400
`Facsimile: 415 397 7188
`
`Michael E. Jones
`mikejones@potterminton.com
`Texas Bar No. 10929400
`Patrick C. Clutter, IV
`Texas Bar No. 24036374
`patrickclutter@potterminton.com
`POTTER MINTON
`110 North College
`Suite 500
`Tyler, Texas 75702
`Tel: 903-597-8311
`Fax: 903-593-0846
`
`Attorneys for Defendant
`GOOGLE LLC
`
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