Case 6:21-cv-00815-ADA Document 30 Filed 01/06/22 Page 1 of 21
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`WAG ACQUISITION, LLC,
`
`Plaintiff,
`
`v.
`
`AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., and
`AMAZON.COM SERVICES LLC,
`
`Defendants.
`
`Civil Action No. 6:21-cv-00815-ADA
`
`MOTION OF DEFENDANTS AMAZON.COM, INC., AMAZON WEB
`SERVICES, INC., AND AMAZON.COM SERVICES LLC TO
`TRANSFER VENUE TO THE WESTERN DISTRICT OF WASHINGTON
`
`Amazon / WAG Acquisition
`Exhibit 1023
`Page 1
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`

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`Case 6:21-cv-00815-ADA Document 30 Filed 01/06/22 Page 2 of 21
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`
`II.
`
`INTRODUCTION ...............................................................................................................1
`
`FACTUAL BACKGROUND ..............................................................................................1
`
`A.
`
`B.
`
`WAG and its litigation campaign ............................................................................1
`
`Amazon and the accused technology .......................................................................3
`
`III.
`
`THIS CASE BELONGS IN THE WESTERN DISTRICT OF WASHINGTON. ..............4
`
`A.
`
`B.
`
`WAG could have filed this case in the Western District of Washington. ................5
`
`The private interest factors favor transfer. ...............................................................5
`
`1.
`
`2.
`
`3.
`
`4.
`
`The most likely sources of proof are maintained and accessed
`primarily in Seattle or the Pacific Northwest. ..............................................6
`
`The availability of compulsory process to secure the attendance of
`non-party witnesses strongly favors transfer. ..............................................7
`
`The convenience and cost of attendance for willing witnesses
`heavily favors transfer. ...............................................................................10
`
`In light of WAG’s pending litigation in the Western District of
`Washington, judicial efficiency favors transfer. ........................................12
`
`C.
`
`The public interest factors favor transfer. ..............................................................13
`
`1.
`
`2.
`
`3.
`
`The Western District of Washington is familiar with the common
`specification of the patents-in-suit. ............................................................14
`
`The Western District of Washington has a far greater interest in
`deciding this case than this Court. .............................................................14
`
`The other public interest factors are neutral. .............................................15
`
`IV.
`
`CONCLUSION ..................................................................................................................15
`
`i
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`Amazon / WAG Acquisition
`Exhibit 1023
`Page 2
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`Case 6:21-cv-00815-ADA Document 30 Filed 01/06/22 Page 3 of 21
`
`Cases:
`
`Page(s):
`
`TABLE OF AUTHORITIES
`
`Auto-Dril, Inc. v. Canrig Drilling Tech. Ltd.,
`No. 6:15-CV-00096, 2015 WL 13691866 (W.D. Tex. May 22, 2015) .............................15
`
`Daimler AG v. Bauman,
`571 U.S. 117 (2014) .............................................................................................................5
`
`DataQuill, Ltd. v. Apple Inc.,
`No. A-13-CA-706-SS, 2014 WL 2722201 (W.D. Tex. June 13, 2014) ..............................6
`
`Flexiworld Techs., Inc. v. Amazon.com, Inc.,
`No. 6:20-CV-00553-ADA, Dkt. 101 (W.D. Tex. Aug. 2, 2021) ...................................5, 15
`
`Hammond Dev. Int’l, Inc. v. Amazon.com, Inc.,
`No. 6:19-CV-00355-ADA, 2020 WL 6136783 (W.D. Tex. Mar. 30, 2020) .....................14
`
`In re Apple, Inc.,
`581 F. App’x 886 (Fed. Cir. 2014) ....................................................................................10
`
`In re Apple Inc.,
`979 F.3d 1332 (Fed. Cir. 2020)..............................................................................12, 13, 14
`
`In re Apple Inc.,
`No. 2021-181, slip op. (Fed. Cir. Nov. 15, 2021) ........................................................10, 15
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)................................................................................7, 11, 14
`
`In re Google LLC,
`No. 2021-171, 2021 WL 4592280 (Fed. Cir. Oct. 6, 2021)...............................................15
`
`In re Hoffmann-La Roche Inc.,
`587 F.3d 1333 (Fed. Cir. 2009)..........................................................................................15
`
`In re HP Inc.,
`826 F. App’x 899 (Fed. Cir. 2020) ....................................................................................12
`
`In re Hulu, LLC,
`No. 2021-142, 2021 WL 3278194 (Fed. Cir. Aug. 2, 2021) ...............................................7
`
`In re Juniper Networks, Inc.,
`14 F.4th 1313 (Fed. Cir. 2021) ................................................................................6, 10, 14
`
`In re Nintendo Co.,
`589 F.3d 1194 (Fed. Cir. 2009)........................................................................................5, 6
`
`ii
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`Exhibit 1023
`Page 3
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`Case 6:21-cv-00815-ADA Document 30 Filed 01/06/22 Page 4 of 21
`
`TABLE OF AUTHORITIES
`(CONTINUED)
`
`Page(s):
`
`In re Pandora Media, LLC,
`No. 2021-172, 2021 WL 4772805 (Fed. Cir. Oct. 13, 2021).............................................10
`
`In re TS Tech USA Corp.,
`551 F.3d 1315 (Fed. Cir. 2008)..........................................................................................11
`
`In re Vistaprint Ltd.,
`628 F.3d 1342 (Fed. Cir. 2010)..........................................................................................12
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) .........................................................................................4, 10
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) (en banc) .....................................................................5, 6, 13
`
`InfoGation Corp. v. Google LLC,
`No. 6:20-CV-00366-ADA, 2021 WL 5547070 (W.D. Tex. Apr. 29, 2021) ...............12, 14
`
`Regents of the Univ. of Cal. v. Eli Lilly & Co.,
`119 F.3d 1559 (Fed. Cir. 1997)..........................................................................................12
`
`XY, LLC v. Trans Ova Genetics, LC,
`No. W-16-CA-00447-RP, 2017 WL 5505340 (W.D. Tex. Apr. 5, 2017) ...........................6
`
`Statutes:
`
`28 U.S.C. § 1400(b) ...................................................................................................................5
`
`28 U.S.C. § 1404(a) .............................................................................................................4, 10
`
`Other Authorities:
`
`Fed. R. Civ. P. 45(c)(1)(A) ........................................................................................................7
`
`
`
`
`
`iii
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`Amazon / WAG Acquisition
`Exhibit 1023
`Page 4
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`Case 6:21-cv-00815-ADA Document 30 Filed 01/06/22 Page 5 of 21
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`
`
`I.
`
`INTRODUCTION
`This case belongs in Washington. That is where Amazon is headquartered and where the
`
`most likely Amazon witnesses—including those most knowledgeable about the accused video
`
`streaming technology—are based. It is also where at least nine different prior art witnesses that
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`would be outside the subpoena power of this Court are based. In contrast, this case has no
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`connection whatsoever to the Western District of Texas. Plaintiff WAG certainly has none. It is
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`based in New Jersey and has no facilities or operations in the state of Texas, let alone this district.
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`And the sole named inventor of the patents-in-suit lives thousands of miles away in Pennsylvania.
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`The Western District of Washington, where WAG is currently litigating a case involving related
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`patents and similar accused technology, is a clearly more convenient venue for this case. The
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`Court should transfer this case to the Western District of Washington.
`
`II.
`
`FACTUAL BACKGROUND
`
`A. WAG and its litigation campaign
`Plaintiff WAG Acquisition, LLC (“WAG”) is based in Succasunna, New Jersey. (Dkt. 1
`
`(“Compl.”) ¶ 4.) WAG has just two officers—its co-founders William Grywalski and Harry
`
`Emerson. (Ranganath Decl., Ex. 1.) Both Mssrs. Grywalski and Emerson live in or around
`
`Flanders, New Jersey. (Id., Exs. 2-3 (LinkedIn Profiles).) WAG alleges that it is a successor to
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`SurferNETWORK; that company too is based in New Jersey.1 (Compl. ¶ 1 (identifying WAG’s
`
`“predecessor, known as SurferNETWORK”); Ex. 4 (SurferNETWORK Webpage).)
`
`WAG filed its complaint against Amazon.com, Inc., Amazon Web Services, Inc., and
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`Amazon.com Services, Inc. (collectively, “Amazon”) on August 6, 2021, alleging infringement of
`
`three patents: Nos. 9,742,824 (the “’824 patent”); 9,729,594 (the “’594 patent”); and 9,762,636
`
`(the “’636 patent”). (Compl. ¶¶ 22, 34, 44.) The patents-in-suit are related, share an identical
`
`
`1 Bill Grywalski and Harry Emerson, co-founders of WAG, are also the co-founders of
`SurferNETWORK. (See Ranganath Decl., Ex. 4 (SurferNETWORK Webpage).)
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`1
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`
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`specification, and were each issued to a single named inventor, Harold Edward Price, who lives in
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`or around Pittsburgh, Pennsylvania. (Compl. Exs. A-C; Ranganath Decl., Ex. 5 (Price—LinkedIn
`
`Profile).) The Amazon case is part of a larger litigation campaign: WAG has asserted the patents-
`
`in-suit in other cases in this district and the Central District of California.2 WAG is also currently
`
`asserting related patents in other cases, including one pending in the Western District of
`
`Washington. WAG Acquisition LLC v. Flying Crocodile Inc., No. 2:19-cv-1278-BJR, Dkt. 1 (W.D.
`
`Wash. Apr. 25, 2014) (attached as Ex. 6 to the Ranganath Declaration). The patents asserted in
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`Flying Crocodile share a common parent application and a substantially similar specification with
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`the patents-in-suit. (Ranganath Decl., Exs. 7-10.) The Flying Crocodile patents also recite
`
`numerous limitations required by the asserted claims in this case.3 The Flying Crocodile case has
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`been pending since 2014 and has been assigned to Judge Rothstein since 2019. (See id., Ex. 11
`
`(Flying Crocodile, Dkt. 173 at 1 (Order Reassigning Case).) Judge Rothstein will likely construe
`
`the terms “media data elements” and “playback rate,” both of which are recited in the asserted
`
`claims of the patents-in-suit in this case.4 (Id., Ex. 12 (Flying Crocodile, Dkt. 271) at 17; Ex. 13
`
`(Flying Crocodile, Dkt. 269 (WAG Claim Construction Brief) at 3, 11.)
`
`
`2 WAG Acquisition LLC v. Google LLC, No. 21-cv-816 (W.D. Tex.); WAG Acquisition LLC v.
`Netflix, Inc., No. 21-cv-1083 (W.D. Tex.); WAG Acquisition LLC v. Walt Disney Co., No. 2:21-
`cv-8230 (C.D. Cal.); WAG Acquisition LLC v. Hulu LLC, No. 21-cv-8242 (C.D. Cal.).
`3 Compare, e.g., Ex. 7 (’141 patent) (claims 1, 2 reciting “media data elements” and “serial
`identifiers”); Ex. 8 (’611 patent) (claims 1, 3-6, 8-18 reciting “media data elements,” “playback
`rate,” and “serial identifiers”); Ex. 9 (’011 patent) (claim 1 reciting “media data elements”); Ex.
`10 (’839 patent) (claims 1-4, 6-11, 13-15, 17-18, 20-21 reciting “media data elements” and
`“playback rate”); with Compl., Ex. A, ’824 patent, claims 1, 5, 9 (reciting “media data elements,”
`“playback rate,” and “serial identifiers”); Compl., Ex. B, ’594 patent, claims 1-2, 6-7, 11-12
`(reciting “media data elements,” “playback rate,” and “serial identifiers”); Compl., Ex. C, ’636
`patent, claims 1, 5, 9 (reciting “media data elements,” “playback rate,” and “serial identifiers”).
`4 The Flying Crocodile court recently stayed “the claim construction and Markman phase of
`th[e] litigation” pending the completion of certain ex parte reexamination proceedings, but the
`parties have already fully briefed claim construction and completed fact discovery on liability.
`WAG Acquisition LLC v. Flying Crocodile Inc., No. 2:19-cv-1278-BJR, Dkt. 285 at 3, 5, 6 (W.D.
`Wash. Dec. 28, 2021) (attached as Ex. 78 to the Ranganath Declaration).
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`2
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`Case 6:21-cv-00815-ADA Document 30 Filed 01/06/22 Page 7 of 21
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`
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`Amazon and the accused technology
`B.
`Amazon has its headquarters and principal place of business in Seattle, Washington.5
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`(Compl. ¶¶ 5-7; Dkt. 22 (Answer) ¶¶ 5-7.) In its infringement contentions, WAG accuses
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`Amazon’s Prime Video streaming service; AWS Elemental MediaConvert, AWS Elemental
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`MediaLive, AWS Elemental MediaStore, AWS Elemental MediaPackage (collectively “AWS
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`Elemental Products”); and CloudFront Content Delivery Network. (Compl. ¶¶ 2, 25, 47;
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`Ranganath Decl., Exs. 14-16 (Infringement Contentions),’824 contentions at 1 (accusing Prime
`
`Video and Cloudfront CDN), ’594 contentions at 1 (incorporating ’824 contentions by reference),
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`’636 contentions at 1 (accusing Cloudfront CDN and AWS Elemental Products).)
`
`Prime Video. Prime Video is Amazon’s video streaming service. The majority of the 350
`
`employees that work on the design and development of Prime Video work in Seattle. (Winston
`
`Decl. ¶ 3.) Other engineers work out of (1) Los Angeles, California, (2) London, England, (3)
`
`Stockholm, Sweden, (4) Toronto, Ontario, Canada, (5) Arlington, Virginia, and (6) Bangalore,
`
`India. (Id. ¶ 4.) None of the engineers that work on video streaming for Prime Video are based in
`
`the state of Texas. (See id. ¶¶ 4-5.) Technical documents and source code related to Prime Video
`
`are generated and maintained by the engineers who work on the service, primarily in Seattle. (Id.
`
`¶ 3.) The finance team that supports Prime Video is also primarily based in Seattle. (Id. ¶ 6.)
`
`CloudFront. CloudFront is a content delivery network that stores content, such as images
`
`and videos, on servers across the country so that it can be provided more quickly to viewers.
`
`(Mokashi Decl. ¶ 3.) The majority of the approximately 170 AWS employees that work on the
`
`design and development of CloudFront are based in AWS’s Seattle headquarters. (See id. ¶ 4.) A
`
`small number of engineers that work on the design and development of CloudFront are based in
`
`(1) Vancouver, British Columbia, Canada (near the Seattle area), (2) San Francisco, California, and
`
`
`5 Amazon Web Services, Inc. and Amazon.com Services LLC are indirect wholly owned
`subsidiaries of Amazon.com, Inc. (Dkt. 25.)
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`3
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`(3) Dublin, Ireland. (Id. ¶ 5.) Only a single CloudFront engineer is based in this district—this
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`engineer works in Austin and does not work on, let alone have any unique knowledge about,
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`CloudFront’s streaming video features. (Id. ¶ 6.) Technical documents and source code related to
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`CloudFront are generated and maintained by the engineers who work on the service, primarily in
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`Seattle. (Id. ¶ 4.) The marketing and finance teams responsible for CloudFront are also based in
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`Seattle. (Id. ¶ 7.)
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`AWS Elemental Products. AWS Elemental is an Amazon subsidiary that provides various
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`video-related software and services. (Truax Decl. ¶¶ 2-3.) Approximately 180 employees work
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`on the technical design and development of the AWS Elemental Products; the majority of these
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`employees are based in Portland, Oregon, with others based in Vancouver, British Columbia,
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`Canada and Santa Clara, California. (Id. ¶¶ 4-5.) These employees maintain and generate
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`technical documents and source code for the AWS Elemental Products in the offices in which they
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`work, primarily Portland. (Id. ¶ 4.) None of the employees that work on Elemental MediaConvert,
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`Elemental MediaPackage, or Elemental MediaLive are based in the state of Texas. (See id. ¶ 6.)
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`One employee that works on Elemental MediaLive works remotely in Dallas on a temporary basis,
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`but does not have unique knowledge of MediaLive that others in Portland do not have. (Id.) The
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`finance and marketing teams for AWS Elemental are also based in Portland. (Id. ¶ 7.)
`
`III.
`
`THIS CASE BELONGS IN THE WESTERN DISTRICT OF WASHINGTON.
`Under 28 U.S.C. § 1404(a), a court may transfer a civil action to any judicial district where
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`it could have been brought originally for the “convenience of parties and witnesses” and “in the
`
`interest of justice.” The threshold inquiry in the transfer analysis is “whether the judicial district
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`to which transfer is sought would have been a district in which the claim could have been filed.”
`
`In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”). If this requirement is
`
`met, “[t]he determination of ‘convenience’ turns on a number of public and private interest factors,
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`4
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`Case 6:21-cv-00815-ADA Document 30 Filed 01/06/22 Page 9 of 21
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`
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`none of which can be said to be of dispositive weight.’” Flexiworld Techs., Inc. v. Amazon.com,
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`Inc., No. 6:20-CV-00553-ADA, Dkt. 101 at 2-3 (W.D. Tex. Aug. 2, 2021) (“Flexiworld Order”)
`
`(citation omitted) (attached as Ex. 17 to the Ranganath Declaration). “[T]he Fifth Circuit forbids
`
`treating the plaintiff’s choice of venue as a factor in the analysis of a request to transfer for the
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`convenience of the parties.” In re Nintendo Co., 589 F.3d 1194, 1200 (Fed. Cir. 2009). Here,
`
`WAG could have filed this case in the Western District of Washington, and the public and private
`
`factors heavily favor transfer to that district.
`
`A. WAG could have filed this case in the Western District of Washington.
`WAG could have filed this case in the Western District of Washington because that court
`
`could properly exercise personal jurisdiction over Amazon and venue would be proper in that
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`district. As WAG admits in its complaint, each of the Amazon defendants has its principal place
`
`of business in Seattle, Washington. (Compl. ¶¶ 5-7; see also Answer ¶¶ 5-7.) Thus, the Western
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`District of Washington may exercise personal jurisdiction over Amazon. Daimler AG v. Bauman,
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`571 U.S. 117, 137 (2014). Venue is also proper under § 1400(b) because Amazon has a “regular
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`and established place of business”—its corporate headquarters in Seattle—in the Western District
`
`of Washington, and provides its accused streaming service to customers throughout the United
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`States, including in the Western District of Washington. 28 U.S.C. § 1400(b) (venue proper “where
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`the defendant has committed [alleged] acts of infringement and has a regular and established place
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`of business”); (Answer ¶ 10 (Amazon provides its products and services “throughout the United
`
`States”).) Because WAG could have filed this case in the Western District of Washington, the Court
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`must consider the relevant private and public interest factors, which each favor transfer. In re
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`Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc) (“Volkswagen II”).
`
`The private interest factors favor transfer.
`B.
`The private interest factors are (1) the relative ease of access to sources of proof; (2) the
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`5
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`Case 6:21-cv-00815-ADA Document 30 Filed 01/06/22 Page 10 of 21
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`availability of compulsory process to secure the attendance of non-party witnesses whose
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`attendance may need to be compelled by court order; (3) the convenience and cost of attendance
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`for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious
`
`and inexpensive. Volkswagen II, 545 F.3d at 315 (citing Volkswagen I, 371 F.3d at 203). Each
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`supports transfer to the Western District of Washington.
`
`1.
`
`The most likely sources of proof are maintained and accessed
`primarily in Seattle or the Pacific Northwest.
`This factor considers “the relative access to sources of evidence in the two competing
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`forums.” In re Juniper Networks, Inc., 14 F.4th 1313, 1321 (Fed. Cir. 2021). In a patent case, “the
`
`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 (citing In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009)).
`
`Additionally, courts “look to the location where the allegedly infringing products were researched,
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`designed, developed and tested.” XY, LLC v. Trans Ova Genetics, LC, No. W-16-CA-00447-RP,
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`2017 WL 5505340, at *13 (W.D. Tex. Apr. 5, 2017). This factor “remains relevant despite
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`technological advances having made electronic document production commonplace.” DataQuill,
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`Ltd. v. Apple Inc., No. A-13-CA-706-SS, 2014 WL 2722201, at *3 (W.D. Tex. June 13, 2014).
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`Here, the accused Amazon technology is designed and developed primarily in Seattle,
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`Washington, within the Western District of Washington, or just a few hours away in Portland,
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`Oregon. (Winston Decl. ¶ 3; Mokashi Decl. ¶ 4; Truax Decl. ¶ 4.) Thus, the bulk of the relevant
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`technical documents in this case are created, stored, and accessed from Amazon’s offices in Seattle
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`or Portland. (Winston Decl. ¶ 3; Mokashi Decl. ¶ 4; Truax Decl. ¶ 4.) Indeed, no Amazon
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`employees in the Western District of Texas work on the accused streaming features, and thus no
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`technical documents or source code relevant to this case are created in or accessed from this
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`district. (See Winston Decl. ¶¶ 3-5; Mokashi Decl. ¶¶ 4-6; Truax Decl. ¶¶ 4-6.)
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`6
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`Case 6:21-cv-00815-ADA Document 30 Filed 01/06/22 Page 11 of 21
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`
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`WAG’s documents, including its corporate records, are presumably maintained in New
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`Jersey, where the company and its operating affiliate SurferNETWORK are based. (See Compl.
`
`¶¶ 1, 4; Ranganath Decl., Exs. 2-4.) Documents related to the patents-in-suit are presumably
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`maintained by either WAG or the patent inventor, Mr. Price—in New Jersey or Pennsylvania.
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`(Ranganath Decl., Ex. 5.) The burden to transmit these documents to this district or the Western
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`District of Washington is about the same. Thus, the relative ease of access to sources of proof
`
`factor strongly favors transfer to the Western District of Washington.
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`2.
`
`The availability of compulsory process to secure the attendance of
`non-party witnesses strongly favors transfer.
`This factor favors transfer where the majority of non-party witnesses are within the
`
`subpoena power of the proposed transferee venue. In re Hulu, LLC, No. 2021-142, 2021 WL
`
`3278194, at *4 (Fed. Cir. Aug. 2, 2021). This is true even without a showing that such witnesses
`
`are unwilling to testify at trial. Id. Courts must consider all potential witnesses who have relevant
`
`and material information, without attempting to evaluate the importance of their testimony or the
`
`likelihood they will testify at trial. In re Genentech, 566 F.3d at 1343.
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`Numerous non-party witnesses knowledgeable about prior art to the patents-in-suit are
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`based in the Western District of Washington and within 100 miles of the Seattle courthouse. See
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`Fed. R. Civ. P. 45(c)(1)(A). For example, Amazon will assert invalidity in view of prior art systems
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`and software of RealNetworks, whose RealPlayer media player allowed users to stream video
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`online as of 1997. (Ranganath Decl., Ex. 18, (History of RealNetworks - The Seattle Times).)
`
`RealPlayer is cited as prior art on the face of the patents-in-suit. (See, e.g., Compl., Ex. A (’594
`
`patent) at 7 (citing “RealNetworks; Embedded Realplayer Extended Functionality Guide—
`
`RealSystem G2” and “Real Player 7 Plus Manual”).) Beginning in 1997, RealNetworks partnered
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`with Microsoft to develop industry standards for media streaming. (Ranganath Decl., Ex. 19
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`(RealNetworks) at 9.) At least six current and former RealNetworks employees are likely to have
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`7
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`Case 6:21-cv-00815-ADA Document 30 Filed 01/06/22 Page 12 of 21
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`knowledge relevant to RealNetworks prior art, including:
`
`• Robert D. Glaser, chairman, CEO, and founder of RealNetworks and named inventor on
`
`U.S. Patent Nos. 6,151,634 and 6,985,932, which are cited as prior art on the face of the
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`patents-in-suit. (Id., Ex. 20, (Robert Glaser—RealNetworks Profile), Ex. 21 (’634 patent),
`
`Ex. 22 (’932 patent); Compl. Ex. A (’594 patent) at 3 (citing ’634 and ’932 patents));
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`• Yuriy A. Reznik, Gary Greenbaum, and Karl Olav Lillevold, who designed and developed
`
`the RealPlayer and RealVideo prior art, and who are named as inventors on prior art patents
`
`(Id., Ex. 23 (Yuriy Reznik—Personal Webpage), Ex. 24 (Gary Greenbaum—LinkedIn
`
`Profile); Ex. 25 (Syntonic Investor Update at 3), Ex. 26, (Karl Lillevold—Personal
`
`Webpage), Ex. 27 (’541 patent), Ex. 28 (’466 patent), Ex. 29 (’020 patent));
`
`• Rahul Agarwal, RealNetworks’ former Director of Engineering and named inventor on
`
`prior art media streaming patents (Id., Ex. 30 (Rahul Agarwal—LinkedIn Profile), Ex. 31
`
`(’600 patent), Ex. 28 (’466 patent)); and
`
`• Phillip Barrett, founder of RealNetworks, and named inventor of numerous prior art patents
`
`(Id., Ex. 32, (Phil Barrett—LinkedIn Profile), Ex. 33 (Barrett Declaration), Ex. 34 (’663
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`patent); Compl., Ex. A (’594 patent) at 3 (citing ’663 patent as prior art).)
`
`These witnesses are based in Seattle, Mercer Island, and Bellevue, each within the Western District
`
`of Washington.6
`
`Current and former employees of Microsoft may also have knowledge relevant to prior art.
`
`Microsoft launched a prior art streaming media player, NetShow, in 1996. (Id., Ex. 38 (NetShow).)
`
`In 1997 Microsoft acquired streaming software developer VXtreme and incorporated VXtreme’s
`
`6 Ranganath Decl., Ex. 35 (Western District of Washington includes King County); Ex. 36
`(Seattle, Mercer Island, and Bellevue are part of King County); Ex. 79 (LinkedIn Profile stating
`that Mr. Glaser lives in Seattle, WA); Ex. 37 at 1, 2 (patent application data sheet stating that Mr.
`Reznik and Mr. Lillevold live in Seattle, WA); Ex. 24 (LinkedIn Profile stating that Mr. Greenbaum
`lives in Mercer Island, WA); Ex. 30 (LinkedIn Profile stating that Mr. Agarwal lives in Bellevue,
`WA); Ex. 32 (LinkedIn Profile stating that Mr. Barrett lives in Seattle, WA).
`
`8
`
`Amazon / WAG Acquisition
`Exhibit 1023
`Page 12
`
`

`

`Case 6:21-cv-00815-ADA Document 30 Filed 01/06/22 Page 13 of 21
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`
`
`video streaming technologies into the Microsoft NetShow player. (Id., Ex. 39 (VXtreme WIRED
`
`Article).) Microsoft rebranded NetShow as Windows Media Player in 1999. (Id., Ex. 40 (The
`
`Evolution of Rich Media).) Windows Media Player, its predecessor NetShow, and the VXtreme
`
`media streaming services are all cited as prior art on the face of the patents-in-suit. (Compl. Ex. A
`
`(’594 patent) at 8 (citing “The VXtreme Web TheaterTM system, including the Web Theater Server,
`
`Web Theater Client, Web Theater Producer, and VXTreme Video Codec V2,” and “Microsoft
`
`Windows Media Player” versions 6.1, 6.4, and 7.0).) At least three current or former Microsoft
`
`employees are likely to have knowledge regarding Microsoft’s NetShow, Windows Media Player,
`
`and related prior art references, including:
`
`• Wei-ge Chen, who designed and developed NetShow and Windows Media Player and is
`
`named on a prior art video streaming patent (Ranganath Decl., Ex. 41 (Wei-ge Chen—
`
`Microsoft Profile), Ex. 42 (’789 patent));
`
`• Anders Edgar Klemets, who designed and developed Windows Media Player and is an
`
`inventor on a prior art video streaming patent cited on the face of the patents-in-suit (Id.,
`
`Ex. 43 (Anders Klemets—LinkedIn Profile); Ex. 44 (’002 patent), Ex. 45 (’834 patent);
`
`Compl. Ex. A (’594 patent) at 2-3 (citing ’002 and ’834 patents as prior art)); and
`
`• Nosakhara Omigui, named inventor on a Microsoft patent cited by the examiner as a basis
`
`for rejections during prosecution of the patents-in-suit (Ex. 46 (’254 patent); Ex. 47
`
`(excerpts from ’636 patent file history) at 3; Ex. 48 (excerpts from ’824 patent file history)
`
`at 15).
`
`These witnesses are based in Redmond and Sammamish, Washington, also within the Western
`
`District of Washington.7
`
`
`7 Ranganath Decl., Ex. 49 (LinkedIn Profile stating that Mr. Chen lives in Redmond, WA); Ex.
`43 (LinkedIn Profile stating that Mr. Klemets lives in Redmond, WA); Ex. 50 (LinkedIn Profile
`stating that Mr. Omoigui lives in Sammamish, WA).
`
`9
`
`Amazon / WAG Acquisition
`Exhibit 1023
`Page 13
`
`

`

`Case 6:21-cv-00815-ADA Document 30 Filed 01/06/22 Page 14 of 21
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`This Court could not order any of these prior art witnesses to attend trial thousands of miles
`
`away in Waco. And Amazon is not aware of any non-party witnesses in this district; WAG did not
`
`identify any in its complaint. (See Compl.) This factor thus heavily favors transfer. In re Apple,
`
`Inc., 581 F. App’x 886, 889 (Fed. Cir. 2014) (compulsory process 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., No. 2021-181, slip op. at 6 (Fed. Cir. Nov. 15, 2021) (attached
`
`as Ex. 51 to the Ranganath Declaration) (compulsory process factor weighs “strongly in favor of
`
`transfer” where potential non-party witnesses are subject to the subpoena powers of the NDCA
`
`transferee venue but not the Western District of Texas).
`
`3.
`
`The convenience and cost of attendance for willing witnesses heavily
`favors transfer.
`The relative convenience and cost of attendance for witnesses is “probably the single most
`
`important factor” in the transfer analysis. In re Juniper Networks, 14 F.4th at 1318 (quoting In re
`
`Genentech, 566 F.3d at 1343). Under Fifth Circuit law, “[w]hen the distance between an existing
`
`venue for trial of a matter and a proposed venue under § 1404(a) is more than 100 miles, the factor
`
`of inconvenience to witnesses increases in direct relationship to the additional distance to be
`
`traveled.” Volkswagen I, 371 F.3d at 204-05. “[L]itigation should be conducted where more
`
`witnesses could testify without leaving their homes or their regular places of business.” In re
`
`Pandora Media, LLC, No. 2021-172, 2021 WL 4772805 at *6 (Fed. Cir. Oct. 13, 2021).
`
`Nearly all Amazon employees knowledgeable about the technical design and development
`
`of the accused technology, and marketing and financial information about the accused technology,
`
`work in Seattle, Washington or Portland, Oregon. (Winston Decl. ¶¶ 3-6; Mokashi Decl. ¶¶ 4-7;
`
`Truax Decl. ¶¶ 4-7.) These witnesses would be able to attend trial in the Western District of
`
`Washington with little or no travel time. Indeed, Amazon’s corporate headquarters in Seattle are
`
`less than one mile from the Seattle courthouse in the Western District of Washington. (Ranganath
`
`10
`
`Amazon / WAG Acquisition
`Exhibit 1023
`Page 14
`
`

`

`Case 6:21-cv-00815-ADA Document 30 Filed 01/06/22 Page 15 of 21
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`Decl., Ex. 52 (Google Maps).) Amazon’s Portland-based employees can get to Seattle in just an
`
`hour by plane or three hours by car. (Id., Ex. 53 (Seattle-Portland flights), Ex. 54 (Google Maps).)
`
`On the other hand, travel to Waco, Texas for these witnesses would be particularly
`
`onerous.8 Waco is over 2,000 miles away from both Seattle and Portland. (Id., Exs. 71-72 (Google
`
`Maps).) Moreover, to attend a trial in Waco, Amazon’s Seattle and Portland-based witnesses would
`
`have to spend at least three days away from their home and take a number of connecting flights
`
`with at least six hours of travel time in each direction. (Exs. 73-74 (Google Flight info)); In re TS
`
`Tech USA Corp., 551 F.3d 1315, 1320 (Fed. Cir. 2008) (“[A]dditional distance [from home] means
`
`additional travel time; additional travel time increases the probability for meal and lodging
`
`expenses; and additional travel time with overnight stays increases the time which these fact
`
`witnesses must be away from their regular employment.”) (citation omitted).
`
`Travel to Seattle would also be more convenient for WAG’s potential witnesses, William
`
`Grywalski and Harry Emerson, who live in New Jersey, and could take a non-stop flight.
`
`(Ranganath Decl., Ex. 75 (12-hour round trip from Newark, NJ to Seattle with nonstop flights);
`
`Ex. 76 (13-hour round trip from Newark, NJ to Waco with connecting flights).) Indeed, the only
`
`potential witness for whom travel to Waco would take less time than travel to Seattle is the patent
`
`inventor Harold Price.9 But Mr. Price is based in the Pittsb