IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`PROXENSE, LLC,
`Plaintiff,
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`v.
`MICROSOFT CORPORTATION,
`Defendants.
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`§
`§
`§
`§
`§
`§
`§
`§
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`W-23-CV-00319-ADA
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`ORDER DENYING DEFENDANT’S MOTION TO TRANSFER
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`I.
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`INTRODUCTION
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`Before the Court is Defendant Microsoft Corporation’s Motion to Transfer Venue to the
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`Western District of Washington. ECF No. 29. Plaintiff Proxense, LLC filed its opposition brief on
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`November 13, 2023 (ECF No. 35) and Microsoft replied in support of the Motion on November
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`27, 2023. ECF No. 40. After carefully considering the parties’ briefing, the relevant facts, and the
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`applicable law, the Motion is DENIED.
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`II.
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`BACKGROUND
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`Proxense originally filed suit against Microsoft on May 2, 2023. ECF No. 1. Proxense accuses
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`Microsoft of infringing U.S. Patent Nos. 8,352,730; 9,298,905; 8,886,954; 8,646,042; 9,679,289; and
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`10,073,960. Id. Proxense has previously filed suit in this Court in Proxense, LLC v. Samsung Elecs.
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`Co., No. 21-cv-00210-ADA (W.D. Tex.), which settled on the day of jury selection and involved the
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`same technology at issue here. There is also a co-pending case in this Court against Google involving
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`the same asserted patents. Proxense, LLC v. Google, LLC, No. 6:23-cv-320-ADA.
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`III.
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`LEGAL STANDARD
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`1
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`MICROSOFT 1027
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`In patent cases, motions to transfer under 28 U.S.C. § 1404(a) are governed by the law of
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`the regional circuit—here, the Fifth Circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed.
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`Cir. 2008). 28 U.S.C. § 1404(a) provides in part that “[f]or the convenience of parties and
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`witnesses, . . . a district court may transfer any civil action to any other district or division where
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`it might have been brought . . . ” Id. “Section 1404(a) is intended to place discretion in the district
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`court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration
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`of convenience and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting
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`Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
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`The preliminary question under § 1404(a) is whether a civil action “‘might have been
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`brought’ in the destination venue.” In re Volkswagen, Inc., 545 F.3d 304, 312 (5th Cir. 2008)
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`[hereinafter Volkswagen II]. If the destination venue would have been a proper venue, then “[t]he
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`determination of ‘convenience’ turns on a number of public and private interest factors, none of
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`which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358
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`F.3d 337, 340 (5th Cir. 2004) (footnote omitted). The private interest factors include: “(1) the
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`relative ease of access to sources of proof; (2) the availability of compulsory process to secure the
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`attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical
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`problems that make trial of a case easy, expeditious and inexpensive.” In re Volkswagen AG, 371
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`F.3d 201, 203 (5th Cir. 2004) [hereinafter Volkswagen I] (citing Piper Aircraft Co. v. Reyno, 454
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`U.S. 235, 241 n.6 (1982)). The public factors include: “(1) the administrative difficulties flowing
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`from court congestion; (2) the local interest in having localized interests decided at home; (3) the
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`familiarity of the forum with the law that will govern the case; and (4) the avoidance of
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`unnecessary problems of conflict of laws of the application of foreign law.” Id. Courts evaluate
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`these factors based on the situation which existed at the time of filing, rather than relying on
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`2
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`hindsight knowledge of the defendant’s forum preference. Hoffman v. Blaski, 363 U.S. 335, 343
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`(1960).
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`The moving party has the burden to prove that a case should be transferred for convenience.
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`Volkswagen II, 545 F.3d at 314. The burden is not simply that the alternative venue is more
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`convenient, but that it is clearly more convenient. Id. at 314–15. While “clearly more convenient”
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`is not the same as the “clear and convincing” standard, the moving party must still show more than
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`a mere preponderance. Quest NetTech Corp. v. Apple, Inc., No. 2:19-cv-118, 2019 WL 6344267,
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`at *7 (E.D. Tex. Nov. 27, 2019). Yet, the Federal Circuit has clarified that, for a court to hold that
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`a factor favors transfer, the movant need not show an individual factor clearly favors transfer. In
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`re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir. 2020).
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`IV. ANALYSIS
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`A. Threshold Matters
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`The threshold determination in the § 1404(a) analysis is whether this case could first have
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`been brought in the destination venue—the WDWA. The Court and the parties agree that the
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`threshold is met because Microsoft is headquartered in the WDWA. 28 U.S.C. § 1400(b); see ECF
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`No. 1 at ¶ 3.
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`B. Private Interest Factors
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`The private interest factors are (1) the relative ease of access to sources of proof; (2) the
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`availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for
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`willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and
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`inexpensive. See In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (Volkswagen II)
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`(citing Volkswagen I, 371 F.3d at 203).
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`i. The Cost of Attendance and Convenience for Willing Witnesses
`3
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`The most important factor in the transfer analysis is the convenience of the witnesses. In
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`re Genentech, Inc., 566 F.3d 1338, 1342 (Fed. Cir. 2009). According to Fifth Circuit law, if the
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`distance between a current venue and a proposed venue is more than 100 miles, the inconvenience
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`to witnesses increases in direct relationship to the additional distance they must travel if the matter
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`is transferred. Volkswagen II, 545 F.3d at 317. But it is unclear when the 100-mile rule applies, as
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`the Federal Circuit has stated that courts should not apply the rule “rigidly” in cases where
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`witnesses would be required to travel a significant distance no matter what venue they testify in.
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`In re Apple, 979 F.3d at 1342 (discussing witnesses traveling from New York) (citing Volkswagen
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`II, 545 F.3d at 317). “[T]he inquiry should focus on the cost and inconvenience imposed on the
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`witnesses by requiring them to travel to a distant forum and to be away from their homes and work
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`for an extended period of time.” In re Google, LLC, No. 2021-170, 2021 WL 4427899, at *4 (Fed.
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`Cir. Sept. 27, 2021). According to the Federal Circuit, time is a more important metric than
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`distance. Id. Yet the Federal Circuit has also held that when willing witnesses will have to travel a
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`significant distance to either forum, the slight inconvenience of one forum in comparison to the
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`other should not weigh heavily on the outcome of this factor. In re Apple, 979 F.3d at 1342. More
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`recently, the Fifth Circuit has noted that it is improper to ignore the rule, the implication being that
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`it should always apply. In re TikTok, 85 F.4th at 361–2.
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`Microsoft specifically identifies seven willing witnesses in WDWA: Peter Dawoud, Robert
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`Gilbert, Samir Shah, Chris Kaler, Hervey Wilson, Michael Allen, and Kathryn Griffith. ECF No.
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`29. at 5, 8, 10–11. Several witnesses filed declarations in support of Microsoft’s motion to transfer.
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`The declarations state where the employee works, which team within Microsoft the declarant
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`works, their role, and their unawareness of any Microsoft activities within WDTX. See, e.g., ECF
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`Nos. 29-1, 29-2, 29-3; see also ECF No 29 at 10. Microsoft explains that there are three Microsoft
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`4
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`teams implicated here (Microsoft Entra ID, Windows Hello, and Microsoft Authenticator
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`applications), and that one employee out of those three teams resides in Texas. Microsoft then also
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`identifies Eduardo Barrera Isla who lives and works in Round Rock, Texas on Microsoft’s
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`Passwordless Core Development team. Id. at 11. The products that the Passwordless Core
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`Development team work on include Windows Hello, Windows Hello for 7 Business, FIDO, and
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`Passkey Authentication. ECF No. 35 at 9. Each of those products is implicated in the alleged
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`infringement. Despite Microsoft arguing that each of its teams who work on the accused products,
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`it admits that Mr. Barrera Isla’s “responsibilities directly overlap with those in the WDWA” and
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`that he accesses documents the same relevant documents from his position in Texas. ECF No. 29
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`at 11.
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`Proxense’s argument against transfer focuses on Mr. Barrera Isla and Ratchpak
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`Pongmongkol. Mr. Pongmongkol works and resides in College Station, Texas (a mere 80 miles
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`from the Waco Federal Courthouse) and serves as a Senior Software Engineer on the Microsoft
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`Identity Team. ECF No. 35 at 9. Proxense highlights the relevance of Mr. Pongmongkol by
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`stressing that “he ranked in the top four contributors of code commits to the Microsoft Azure AD
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`repository on GitHub between October 29, 2017 and October 23, 2023.” Id. at 9–10 (emphasis in
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`original). Microsoft characterizes Mr. Pongmongkol as knowing “little about the accused
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`passwordless authentication methods” and Proxense’s use of his knowledge as “rank speculation.”
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`ECF No. 40 at 3 (citing In re TikTok, No. 23-50575 at *11 n.9). The Court disagrees.
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`While Microsoft charges Proxense of engaging in speculation, it asks the Court to do the
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`same speculation in its favor, but with far less evidence. The Court cannot assess the likelihood of
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`required travel of the seven witnesses identified by Microsoft though their vague declarations.
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`Microsoft has put before the court a few Microsoft employees who do not know of Microsoft
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`5
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`employees or activities in Texas. The tactic of pointing to teams and employees in WDWA while
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`asking the Court to accept these witnesses without scrutiny does not help the Court’s ultimate
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`determination. It is true that Microsoft has provided the “witness’s title, the title of the team they
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`belong[] to, and the technology that team supports.” VoIP-Pal.com, Inc. v. Meta Platforms, Inc.,
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`No. 2022 WL 3021522, *7 (W.D. Tex. July 28, 2022). But the Court must also decide, in the face
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`of witnesses with overlapping knowledge in both forums, whether the witnesses in Microsoft’s
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`preferred forum are likely to testify at all. To that end, Microsoft has not given the Court evidence
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`that would lead it to believe the witnesses in or near the WDTX would be less likely to appear in
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`this case than those identified in the WDWA.
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`The Court understands that more relevant teams and team members reside in or near the
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`proposed transferee forum. But Microsoft’s presentation of this factor does not convey why the
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`Microsoft witnesses in the WDWA would not be saved the expense of travel to WDTX, especially
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`when there are witnesses residing in or near the WDTX whose “responsibilities directly overlap
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`with those in the WDWA.” ECF No. 29 at 11. On the other hand, Proxense has established with
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`precision that Mr. Barrera Isla has relevant knowledge of and experience with the accused products
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`such that he would be both likely to testify at trial and find this district clearly more convenient.
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`As for Mr. Pongmongkol, the evidence shows that he has substantial knowledge of the accused
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`products, and that his experience in developing these products at Microsoft is extensive. As for the
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`technical witnesses, the two witnesses specifically identified who reside within in or near the
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`WDTX have overlapping knowledge with those who reside in the WDWA.
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`Microsoft also presents its in-house counsel with knowledge of Microsoft licensing
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`practices—Michael Allen, Assistant General Counsel at Microsoft—is a relevant willing witness.
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`ECF No. 29 at 10. Mr. Allen resides in the WDWA. Id. To the extent his knowledge will be used
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`6
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`during depositions, the Plaintiff has already conceded to depose him remotely. Although Microsoft
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`devotes just one sentence in its Motion to Mr. Allen, the Court finds that his knowledge would
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`likely be necessary at trial and highly relevant to damages.
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`The Parties also identify several non-party willing witnesses. Fist, Microsoft points to
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`Micheal Perla and Michael Jones who are both former Microsoft employees living in WDWA. Id.
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`Proxense identifies David Brown, the named inventor of the asserted patents, who resided in
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`Chattanooga, Tennessee. ECF No. 35 at 10–11.
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`
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`In sum, the parties have identified several Microsoft witnesses in the WDWA that possess
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`relevant knowledge. Proxense’s argument that these witnesses’ relevance is blunted by the fact that
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`two witnesses with overlapping knowledge reside in or near the WDTX. Further, Proxense
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`identified Mr. Brown, who would find travel from Chattanooga to Waco more convenient than to
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`WDWA. Although the Court finds that Microsoft has not adequately explained why witnesses with
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`the overlapping knowledge in the WDTX should be disregarded simply because other witnesses
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`reside in WDWA, this factor still slightly favors transfer. This finding is based on the Fifth Circuits
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`ruling in TikTok, which mandates that this factor should favor transfer where “the bulk of the
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`relevant witnesses,” as is the case here, are closer to the transferee forum. In re TikTok, Inc., 85
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`F.4th at 362. The strength of this factor is in the Court’s ultimate determination is less because of
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`the witnesses in this district with overlapping knowledge and the named inventor, David Brown,
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`who would find this district to be more convenient.
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`ii. The Relative Ease of Access to Sources of Proof
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`“In considering the relative ease of access to proof, a court looks to where documentary
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`evidence, such as documents and physical evidence, is stored.” Fintiv Inc. v. Apple Inc., No. 6:18-
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`cv-00372, 2019 WL 4743678, at *2 (W.D. Tex. Sept. 10, 2019). “[T]he question is relative ease of
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`7
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`access, not absolute ease of access.” In re Radmax, 720 F.3d 285, 288 (5th Cir. 2013) (emphases
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`in original). “In patent infringement cases, the bulk of the relevant evidence usually comes from
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`the accused infringer. Consequently, the place where the defendant’s documents are kept weighs
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`in favor of transfer to that location.” In re Apple Inc., 979 F.3d at 1340 (citing In re Genentech,
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`566 F.3d at 1345). The Court acknowledges that the Fifth Circuit’s decision in In re Planned
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`Parenthood suggests a shift in the analysis of this factor. The Fifth Circuit has recently agreed with
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`a district court that concluded that this factor is neutral because electronic evidence is equally
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`accessible in either forum. In re Planned Parenthood Fed’n of Am., Inc., 52 F.4th 625, 630 (5th
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`Cir. 2022). The Fifth Circuit held that “[t]he location of evidence bears much more strongly on the
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`transfer analysis when . . . the evidence is physical in nature.” Id. But the Federal Circuit has held
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`that it is an error to conclude this factor is neutral because electronic documents are easily
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`accessible in both forums. In re Apple, Inc., No., 2022 WL 1196768, at *4 (Fed. Cir. Apr. 22, 2022).
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`As much as these two holdings can be reconciled, the Court concludes that the location of physical
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`evidence is more important to this analysis than the location of where electronic documents are
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`typically accessed. Even so, the Court still considers the location of document custodians of
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`electronic documents in its analysis of this factor. In re Google LLC, No. 2021-178, 2021 WL
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`5292267, at *2 (Fed. Cir. Nov. 15, 2021).
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`Microsoft contends this factor favors transfer because, although most of the relevant
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`sources of proof are available electronically in the WDTX, those sources are stored in shared
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`locations that can only be accessed by people with proper credentials who are all located in
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`WDWA, “except for Mr. Barrera Isla.” ECF No. 29 at 8. Proxense rebuts this blanket assertion by
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`showing that the deposed Microsoft employees testified that all software they use in the normal
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`course of business is fully accessible remotely. ECF No. 35 at 13 (citing ECF No 35-2, Ex. E at
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`8
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`15:6-8, 20-22; Ex. F at 12:19-25.) Finally, the Court understands source code will be a key issue
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`in this case. While Microsoft argues that this source code’s creation and storage in locations in the
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`WDWA tips this factor in transfer, Proxense demonstrates otherwise. Proxense provided the Court
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`with an email chain between counsel of record showing that Microsoft intends to make source
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`code available for inspection in Washington, D.C, not Washington state. ECF No. 35-17 at 2.
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`Microsoft’s reply brief does not respond to this glaring contradiction. Instead, it simply asserts that
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`the relevant sources of proof are “in shared locations that can only be accessed by people with
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`proper credentials/access rights, who are all located outside of the WDTX except for Mr. Barrera
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`Isla.” ECF No. 40 at 4.
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` In Planned Parenthood, this factor weighed against transfer because “the vast majority of
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`the evidence was electronic, and therefore equally accessible in either forum.” In re Planned
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`Parenthood, 52 F.4th 630. In TikTok, it was “undisputed that only certain of petitioners’ employees
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`[could] access the source code because petitioners have placed it behind a security clearance.” In
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`re TikTok, Inc., 85 F.4th at 359. Thus, the Court found abuse of discretion in finding this factor was
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`neutral because there were “no employees in the Western District of Texas who can access the
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`source code.” Id.
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`This case is more like Planned Parenthood than TikTok. The record before the Court shows
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`that Microsoft’s documents, software, and source code is accessible electronically anywhere—and
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`in both forums. Despite Microsoft asserting that extra security clearance is needed to access some
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`of the relevant proof, it concedes that there are employees in the WDTX who can access that
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`information—Mr. Barrera Isla. Since there is an employee who can access relevant proof here in
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`WDTX, TikTok is not on point. See In re TikTok, Inc., 85 F.4th at 359. Further, Microsoft’s email
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`admission that source code review will be conducted in D.C.—which is closer to the WDTX—
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`shows that Microsoft’s assertion that accessing that source of proof anywhere, but WDWA, would
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`be difficult or expensive is tenuous at best. Microsoft’s failure to respond to that obvious
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`contradiction is also considered by the Court. The presentation of this factor by the parties shows
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`that the sources of proof are mostly, if not entirely, accessible electronically. Further, at least one
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`person with the requisite security clearance to access sensitive information resides in this district.
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`The Court finds that this factor weighs against transfer. See In re Planned Parenthood, 52 F.4th
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`630 (sources of proof factor weighed against transfer because “the vast majority of the evidence
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`was electronic, and therefore equally accessible in either forum”); See also Rafqa Star, LLC v.
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`Google, LLC, 2023 WL 6050593 (W.D. Tex. Sept. 15, 2023) (“When most of the evidence is
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`electronic and equally accessible in either forum, this factor weighs against transfer.”)
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`
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`iii. The Availability of Compulsory Process to Secure the Attendance of Witnesses
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` Under the Federal Rules, a court may subpoena a witness to attend trial only (a) “within 100
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`miles of where the person resides, is employed, or regularly transacts business in person”; or (b)
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`“within the state where the person resides, is employed, or regularly transacts business in person, if the
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`person . . . is commanded to attend a trial and would not incur substantial expense.” Fed. R. Civ. P.
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`45(c)(1)(A), (B)(ii). Under this factor, the Court focuses on non-party witnesses whose attendance may
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`need to be secured by a court order.” Fintiv Inc., 2019 WL 4743678, at *14 (citing Volkswagen II, 545
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`F.3d at 316). This factor “weigh[s] heavily in favor of transfer when more third-party witnesses reside
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`within the transferee venue than reside in the transferor venue.” In re Apple, 581 F. App’x 886, 889
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`(Fed. Cir. 2014) (citing In re Genentech, 566 F.3d at 1345). Fifth Circuit law dictates that “the
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`availability of the compulsory process ‘receives less weight when it has not been alleged or shown that
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`any witness would be unwilling to testify.’” In re Planned Parenthood Fed’n of Am., Inc., 52 F.4th at
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`630−31 (quoting Hefferan v. Ethicon Endo-Surgery Inc., 828 F.3d 488 (6th Cir. 2016)); see also In re
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`TikTok, Inc., 85 F.4th at 360 (confirming that “Planned Parenthood allows district courts to afford
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`this factor less weight when it has not been alleged or shown that any witness would be unwilling
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`to testify”); contra In re Pandora Media, LLC, 2021-172, 2021 WL 4772805, at *3 (Fed. Cir. 2021)
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`(“witness is presumed to be unwilling” when there is no indication that he or she is willing.).
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`Microsoft has identified two non-party witnesses who are in the WDWA. Mr. Perla, who
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`interacted with Proxense while employed at Microsoft around 2010, and Mr. Jones, who was involved
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`in drafting and authoring certain portions of the Open ID Connect and FIDO 2 standards, including the
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`WebAuthn standard. ECF No. 29 at 10. Both witnesses are former Microsoft employees and have
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`conveyed to Microsoft’s counsel that they are unwilling to travel to the WDTX to provide testimony.
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`ECF No. 29-7 (Declaration of Betty Chen); ECF No. 29-9 (Declaration of Michael Perla). Microsoft
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`uses these two witnesses to support its contention that this factor supports transfer.
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`Proxense, on the other hand, argues this factor should weigh against transfer because an
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`important part of their case will involve third parties in this district that use the accused products. ECF
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`No. 35 at 12. They specifically point to two companies in this district—Dell and Edgile. Id. It is
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`disputed whether this Court’s subpoena power over Edgile would be more effective than that of the
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`WDWA, but Microsoft does not dispute Dell’s presence in this district. See ECF No. 40 at 4. Proxense
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`also urges the Court to discount the relevance of Mr. Jones and Mr. Perla because Mr. Jones’s
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`“declaration shows sparse details as to his knowledge of the infringing architecture” and “Microsoft
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`has failed to show that Mr. Perla offers any unique knowledge that a 30(b)(6) witness may not also
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`provide.” Id.
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`While Microsoft has point to two third party witnesses in WDWA who are also unwilling to
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`testify, Proxense has also shown that potentially important third-party witnesses exist in the WDTX.
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`Though Proxense hasn’t demonstrated Dell or Edgile’s unwillingness, it has shown the unwilling
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`witnesses in WDWA proffered by Microsoft are only slightly relevant to this action or would be
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`unnecessary considering a 30(b)(6) representative testifying to the same knowledge. Since there are
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`third party witnesses in both forums, the Court concludes that this factor is neutral.
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`iv. All Other Practical Problems That Make Trial of a Case Easy, Expeditious, and
`Inexpensive
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`When considering the “practical problems that make trial of a case easy, expeditious and
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`inexpensive” factor, courts analyze whether transfer would serve the interest of judicial economy.
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`Affinity Labs of Tex., LLC v. Samsung Elecs. Co, No. 6:13-CV-364, 2014 WL 12570501, at *7
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`(W.D. Tex. June 11, 2014); In re Vistaprint Ltd., 628 F.3d 1342, 1346 (Fed. Cir. 2010).
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`Proxense argues that this factor weighs heavily against transfer because there is co-pending
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`litigation involving the same patents and that this Court has already considered the patents in a
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`prior action. ECF No. 35 at 3–8; see Proxense, LLC v. Google, LLC, No. 6:23-cv-320-ADA (W.D.
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`Tex.); Proxense, LLC v. Samsung Elecs. Co., No. 6:21-cv-00210-ADA (W.D. Tex.) (“Proxense-
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`Samsung”). Microsoft argues this factor is neutral. ECF No. 35 at 14.
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`Most of the argument Microsoft makes against this factor disfavoring transfer revolve around
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`the other patents asserted against Microsoft than those that were asserted against Samsung. Further,
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`Microsoft correctly mentions that co-pendency of another action in this Court involving the same
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`patents should not “automatically tip the balance in non-movant’s favor regardless of the existence
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`of co-pending transfer motions and their underlying merits.” In re Google Inc., 2017 WL 977038,
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`at *2 (Fed. Cir. Feb. 23, 2017).
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` As stated in this Court’s order denying Google’s motion to transfer, however, the Court
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`conducted claim construction on 12 claims on two of the patents-in-suit here and considered
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`multiple summary judgment motions, Daubert motions, and motions in limine in the prior
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`Proxense-Samsung litigation. Upon review of that order, the Federal Circuit stated, “the district
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`court reasonably found that judicial economy considerations disfavor transfer in light of the trial
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`court’s familiarity with the patents and technology from its substantial involvement with prior
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`litigation.” In re Google LLC, No. 2024-117, 2024 WL 1460003 (Fed. Cir. Apr. 4, 2024). Since
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`this motion was filed, the Court has conducted claim construction in the Google case. Although
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`Microsoft argues that the “infringement analysis in Samsung is unlikely to overlap with the facts
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`here,” it cannot plausibly maintain that judicial economy would be best served by sending this case
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`to a new court, where a new judge would have to get up to speed on patents and technologies this
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`Court is intimately familiar with. The Court finds this factor disfavors transfer.
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`
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`C. Public Interest Factors
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`i. Administrative Difficulties Flowing from Court Congestion
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`This factor concerns “whether there is an appreciable difference in docket congestion
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`between the two forums.” In re Adobe Inc., 823 F. App’x 929, 932 (Fed. Cir. 2020). It considers
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`the “[t]he speed with which a case can come to trial and be resolved.” In re Genentech, Inc., 566
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`F.3d at 1347. In this analysis, court congestion is considered “the most speculative” factor, and
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`when “relevant factors weigh in favor of transfer and others are neutral, then the speed of the
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`transferee district court should not alone outweigh all those other factors.” Id. The Court notes that
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`the Federal Circuit recently concluded that this factor should not weigh against transfer when
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`plaintiff “is not engaged in product competition in the marketplace and is not threatened in the
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`market in a way that, in other patent cases, might add urgency to case resolution.” In re Google
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`LLC, 58 F.4th 1379, 1383 (Fed. Cir. 2023). This factor normally weighs against transfer when the
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`“case appears to be timely proceeding to trial before the” transferee district. In re TikTok, 85 F.4th
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`at 364. Microsoft argues this factor is neutral. Proxense points to this Court’s average time-to-trial
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`is two months faster than the WDWA to say this factor should disfavor transfer. Since the parties
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`did not present evidence of market competition, and the Court has already delayed the case by
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`granting a stay (albeit a stay for less than one month) pending the resolution of this motion, the
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`Court finds this factor is neutral.
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`ii. Local Interest in Having Localized Interests Decided at Home
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`Under this factor, the Court must evaluate whether there is a local interest in deciding local
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`issues at home. Volkswagen II, 545 F.3d at 317. Local interests in patent cases “are not a fiction.” In
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`re Samsung Elecs. Co., 2 F.4th 1371, 1380 (Fed. Cir. 2021). “A local interest is demonstrated by a
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`relevant factual connection between the events and the venue.” Word to Info, Inc. v. Facebook, Inc.,
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`No. 3:14-CV-04387-K, 2015 WL 13870507, at *4 (N.D. Tex. Jul. 23, 2015). “[T]he sale of an accused
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`product offered nationwide does not give rise to a substantial interest in any single venue.” In re
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`Hoffmann-La Roche Inc., 587 F.3d 1333, 1338 (Fed. Cir. 2009). “This factor most notably regards not
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`merely the parties’ significant connections to each forum writ large, but rather the ‘significant
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`connections between a particular venue and the events that gave rise to a suit.’” In re Apple, 979 F.3d
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`at 1344 (emphasis in original) (quoting In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010)).
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`Courts should not heavily weigh a party’s general contacts with a forum that are untethered from the
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`lawsuit, such as a general presence. Id. Moreover, “little or no weight should be accorded to a party’s
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`‘recent and ephemeral’ presence in the transferor forum, such as by establishing an office in order to
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`claim a presence in the district for purposes of litigation.” In re Juniper Networks, Inc., 14 F.4th at
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`1320 (quoting In re Microsoft Corp., 630 F.3d 1361, 1365 (Fed. Cir. 2011)).
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`This factor is hotly disputed by the parties. Microsoft intuitively argues that this factor supports
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`transfer because Microsoft is headquartered in the WDWA, and “research, design, development, and
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`implementation of the products identified in the Complaint occurred in the WDWA.” ECF No. 29 at
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`14. Proxense responds by pointing to the large disparity in sales that occurred in this District as
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`compared to the WDWA. ECF No. 36 at 14 (“Microsoft’s resellers and distributors. . . located in Texas
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`outnumber those located in Washington by more than double. . . . [and] Microsoft’s list of customers
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`produced in this action shows that about 1,400,000”). Still, “the sale of an accused product offered
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`nationwide does not give rise to a substantial interest in any single venue.” In re Hoffmann-La Roche,
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`587 F.3d at 1338. But, according to Proxense, an important aspect of the case will be Microsoft’s
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`relationship to the third-party developers mentioned above. See ECF No. 1 at ¶ 51. Microsoft’s large
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`presence in the WDWA is undisputed, but Proxense has shown that this district also has far more
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`instances of sales of the accused product than the WDWA, and Texas-based third-party companies’
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`relationships with Microsoft will be relevant at a trial. Given the information provided by the parties,
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`the Court finds this factor is neutral.
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`iii. Familiarity of the Forum with the Law That Will Govern the Case; Avoidance of
`Unnecessary Problems of Conflict of Laws or in the Application of Foreign Law
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`Microsoft contends the remaining factors are neutral. ECF No. 29 at 15. Proxense contends
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`
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`these factors slightly disfavor transfer because of a choice-of-law provision in Proxense’s Settlement
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`and License agreement with Samsung from the resolution of the prior litigation. The Court finds that
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`any interest in administering and interpreting that agreement in this forum rather than the WDWA is
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`so speculative as to render it unimportant in this decision. Thus, the Court agrees with Microsoft and
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`finds the remaining factors neutral.
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`V.
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`CONCLUSION
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`The Court finds that two private interest factors—practical problems that make trial of a
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`case easy, expeditious, and inexpensive, and access to sources of proof—weighs against transfer
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`because the co-pendant case and this Court’s experience and effort expended in the same patents.
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`The Court also finds that the willing witnesses factor weighs slightly in favor of transfer. The
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`remaining private interest factors are neutral. Further, each public interest factor is neutral. Despite
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`the importance of the willing witness factor, the evidence and argument advanced by Microsoft
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`failed to show that the WDWA is clearly more convenient. Accordingly, the Motion to Transfer is
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`DENIED. It is FURTHER ORDERED the stay is lifted, and the parties shall file an updated
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`proposed scheduling order within 14 days of the issuance of this order.
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`SIGNED this 18th day of April, 2024.
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