Case 2:12-cv-02826-JPM-tmp Document 35 Filed 03/04/13 Page 1 of 13 PageID 396
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`Civil Action No. 12-cv-02826-JPM-tmp
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`Civil Action No. 12-cv-02827-JPM-tmp
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`Civil Action No. 12-cv-02828-JPM-tmp
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`B.E. Technology, L.L.C.,
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`Plaintiff,
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`v.
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`Sony Computer Entertainment America,
`LLC,
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`Defendant.
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`B.E. Technology, L.L.C.,
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`Plaintiff,
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`v.
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`Sony Mobile Communications (U.S.A.) Inc.,
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`Sony Electronics Inc.
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`Defendant.
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`REPLY IN SUPPORT OF DEFENDANTS SONY COMPUTER ENTERTAINMENT
`AMERICA LLC, SONY MOBILE COMMUNICATIONS (U.S.A.) INC., AND SONY
`ELECTRONICS INC.’S MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. §
`1404(A) TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
`DISTRICT OF CALIFORNIA
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`

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`Case 2:12-cv-02826-JPM-tmp Document 35 Filed 03/04/13 Page 2 of 13 PageID 397
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ............................................................................................................. 1
`BET’S CHOICE OF FORUM IS NOT ENTITLED TO DEFERENCE........................... 2
`A.
`BET Argues The Wrong Legal Standard for Transfer........................................... 2
`B.
`The Western District of Tennessee Is Not BET’s Home Forum ........................... 3
`THE PRIVATE INTEREST FACTORS FAVOR TRANSFER....................................... 5
`A.
`The Ability to Subpoena Non-Party Witnesses in the Northern District of
`California Favors Transfer..................................................................................... 5
`The Convenience of the Witnesses Favors Transfer.............................................. 6
`B.
`The Location of the Sources of Proof Favors Transfer.......................................... 7
`C.
`The Convenience of the Parties Favors Transfer................................................... 9
`D.
`THE PUBLIC INTEREST FACTORS FAVOR TRANSFER BECAUSE THE
`WESTERN DISTRICT OF TENNESSEE HAS LITTLE OR NO LOCAL
`INTEREST IN VINDICATION OF BET’S PATENT RIGHTS...................................... 9
`ORAL ARGUMENT....................................................................................................... 10
`CONCLUSION................................................................................................................ 10
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`-i-
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`I.
`II.
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`III.
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`IV.
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`V.
`VI.
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`Case 2:12-cv-02826-JPM-tmp Document 35 Filed 03/04/13 Page 3 of 13 PageID 398
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`I.
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`INTRODUCTION
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`Sony files this Reply in response to Plaintiff B.E. Technology, L.L.C.’s (“BET”)
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`Memorandum in Opposition (“BET’s Opposition”) to Defendants Sony Computer Entertainment
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`America LLC’s (“SCEA”), Sony Mobile Communications (U.S.A.) Inc.’s (“SoMC”), and Sony
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`Electronics Inc.’s (“SEL”) (collectively “Sony”) Motion to Transfer Venue Pursuant to 28
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`U.S.C. § 1404(a) (“Motion to Transfer”) because BET’s Opposition (1) argues for the
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`application of the incorrect legal standards for determining whether to grant a motion to transfer
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`and contravenes Federal Circuit precedent, (2) presents facts that are contradicted by BET’s own
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`Federal and State filings, and (3) does not dispute facts that favor transfer, including that
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`important non-party witnesses are subject to compulsory process only in the Northern District of
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`California.
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`BET ignores established case law from this District holding that a plaintiff’s choice of
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`forum is not entitled to deference where, as here, there is little or no connection to the chosen
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`forum. In addition, BET outright contravenes Federal Circuit case law holding that the location
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`of documentary evidence is an important factor in determining motions to transfer.
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`Moreover, BET’s Opposition is based on its uncorroborated claim that this District is the
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`location of BET and Mr. Hoyle, its CEO. This claim is contradicted by BET’s own
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`representations in recent government filings. First, in BET’s application to conduct business in
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`the State of Tennessee, BET stated that it had not done any business in the state prior to
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`September 2012. Second, in a December 2011 patent application filed with the U.S. Patent and
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`Trademark Office, BET listed its contact address as being in Michigan, and listed Mr. Hoyle as a
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`resident of New Orleans, Louisiana. Even if Mr. Hoyle is in Tennessee, he is not the plaintiff;
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`BET is.
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`Regardless, the balance of the private and public interests still weighs strongly in favor of
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`transfer to the Northern District of California. BET does not seriously dispute that companies
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`likely to be sources of prior art are located in or near the Northern District of California and that
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`many non-party witnesses would be subject to compulsory process only in the Northern District
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`of California. BET also does not dispute (1) that most of the Sony witnesses with relevant
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`knowledge of the accused products are located in or near the Northern District of California or
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`overseas, (2) that SCEA is headquartered in the Northern District of California and does not have
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`any offices or other facilities in the Western District of Tennessee, (3) that SEL and SoMC have
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`significant presences and maintain large facilities in the Northern District of California and do
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`not have any offices or other facilities in the Western District of Tennessee, (4) that Sony
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`maintains the vast majority of documents relating to the accused products in or near the Northern
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`District of California or overseas, and (5) that the headquarters of most of the defendants in
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`related actions are in or near the Northern District of California.
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`Because nearly all relevant information in the present cases is in the Northern District of
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`California, and not Tennessee, Sony respectfully requests that the Court grant Sony’s Motion to
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`Transfer Venue to the Northern District of California.
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`II.
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`BET’S CHOICE OF FORUM IS NOT ENTITLED TO DEFERENCE
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`A.
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`BET Argues The Wrong Legal Standard for Transfer
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`While BET argues that “plaintiff’s choice of forum is entitled to substantial weight,” see
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`BET Opposition at 5 (citing Hunter Fan Co. v. Minka Lighting, Inc., No. 06-2108 M1/P, 2006
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`WL 1627746, at *2 (W.D. Tenn. June 12, 2006)), BET ignores another principle from the same
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`case that states that “Plaintiff’s choice of forum is not entitled to the ordinary degree of deference
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`[where] plaintiff maintains little connection to [its chosen forum].” Hunter Fan Co., 2006 WL
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`1627746, at *2. In fact, more recent case law has followed that very principle. Esperson v.
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`2
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`Case 2:12-cv-02826-JPM-tmp Document 35 Filed 03/04/13 Page 5 of 13 PageID 400
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`Truegreen Ltd. P’ship, No. 2:10-cv-02130, 2010 WL 4362794, at *4 (W.D. Tenn. Oct. 5, 2010)
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`(“courts in this circuit do not assign plaintiff’s choice [of forum] paramount importance.”
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`(internal quotation omitted)), adopted 2010 WL 4337823 (W.D. Tenn. Oct. 27, 2010) (granting
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`motion to transfer). As discussed below, BET has little or no connection to this forum, and
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`accordingly, their choice of forum should not be given substantial weight. Infra, II.B.
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`B.
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`The Western District of Tennessee Is Not BET’s Home Forum
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`The Western District of Tennessee is not BET’s home forum, as evidenced by BET’s
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`own filings with the State of Tennessee, and the United States Patent and Trademark Office.
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`While BET’s Opposition argues that this District is BET’s home forum as purportedly evidenced
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`by the residential history of Mr. Hoyle, BET’s September, 2012 filing with the Tennessee
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`Department of State indicates that Mr. Hoyle is but one of 74 members of BET. See Ex. A. ,
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`Furthermore, Mr. Hoyle is not himself the plaintiff in this action. Moreover, contrary to Mr.
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`Hoyle’s claim that “[s]ince being appointed Chief Executive Officer, [he has] been the only
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`member of [BET] with management responsibilities,” see BET’s Opposition, Ex. 2 (“Hoyle
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`Decl.”) at ¶ 6, in 2009, an individual named Mark McKinley signed a BET Annual Statement,
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`and identified his position as “Managing Member.” See Ex. B. Mark McKinley does not reside
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`in Tennessee. See Ex. C. In addition, BET admits that it first applied to conduct business in the
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`State of Tennessee in September 2012, and does not claim to have any customers, facilities, or
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`employees other than Mr. Hoyle in this District.
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`BET’s September 9, 2012 Application with the Tennessee Department of State. Ex. A.
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`Throughout BET’s Opposition, BET argues that it has been located in the Western
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`District of Tennessee since at least 2008. See, e.g., BET’s Opposition at 1, 5, 6, 7, 8. However,
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`BET’s argument is plainly contradicted by its September 2012 application to conduct business in
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`Case 2:12-cv-02826-JPM-tmp Document 35 Filed 03/04/13 Page 6 of 13 PageID 401
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`the State of Tennessee. See Ex. A. The application required that BET state the date of the
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`commencement of business activities in the state “if [BET] commenced doing business in
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`Tennessee prior to the approval of this application.” See id. (reproduced below). BET did not
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`provide any date, because, apparently they had not commenced doing business prior to
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`September, 2012. Id. BET has failed to account for its own representation to the State of
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`Tennessee that it did not do business in the state prior to 2012. See Hoyle Decl. at ¶ 8.
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`BET’s September 9, 2012 Application with the Tennessee Department of State. Ex. A.
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`Furthermore, BET fails to even address the evidence that places Mr. Hoyle’s residence
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`outside of Tennessee. A December, 2011 BET filing with the U.S. Patent and Trademark Office
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`states that Mr. Hoyle is a resident of Louisiana. See Ex. D (reproduced below). On this patent
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`application, Mr. Hoyle listed his place of residence as New Orleans, Louisiana. Id. An even
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`more recent June 21, 2012 U.S. Patent Publication also listed Mr. Hoyle as a New Orleans,
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`Louisiana resident. See Ex. E. Even though, as noted above, Mr. Hoyle’s residence history is
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`separate and apart from the plaintiff’s choice of forum, to the extent that Mr. Hoyle’s residence is
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`at all related to plaintiff BET’s location, it is clear that Mr. Hoyle represented to the U.S. Patent
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`and Trademark Office that he was a resident of Louisiana until recently, and not a resident of this
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`District.
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`BET’s December 16, 2011 Filing with the U.S. Patent and Trademark Office. Ex. D.
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`With respect to BET itself, on the same December 16, 2011 U.S. Patent and Trademark
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`Office filing and the June 21, 2012 U.S. Patent Publication, BET listed its contact address as
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`Case 2:12-cv-02826-JPM-tmp Document 35 Filed 03/04/13 Page 7 of 13 PageID 402
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`being in Michigan. See Exs. D and E. In fact, a search of public records performed shortly after
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`BET filed the complaints in these suits indicates that BET is located in Michigan and Louisiana,
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`and provides no evidence that BET is located in Tennessee. See Ex. F.
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`Based on the above, BET should not be entitled to any deference to its choice of forum.
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`See, e.g., In re Nintendo Co., Ltd., 589 F.3d 1194, 1198 (Fed. Cir. 2009) (holding that where
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`“most witnesses and evidence [are] closer to the transferee venue [and there are] few or no
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`convenience factors favoring the venue chosen by the plaintiff, the trial court should grant a
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`motion to transfer.”); Returns Distribution Specialists, LLC v. Playtex Prods., Inc., No. 02-1195-
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`T, 2003 WL 21244142, at *9 (W.D. Tenn. May 28, 2003) (transferring venue where “the
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`overwhelming inconvenience to the witnesses outweighs the Plaintiff’s interest in choosing their
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`own forum.”).
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`III. THE PRIVATE INTEREST FACTORS FAVOR TRANSFER
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`A.
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`The Ability to Subpoena Non-Party Witnesses in the Northern District of
`California Favors Transfer
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`Many relevant non-party witnesses lie within the subpoena power of the Northern District
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`of California. In fact, some witnesses are only subject to compulsory process in the Northern
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`District of California. See Motion to Transfer, at 16-17. This factor therefore favors transfer.
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`Instead of disputing this fact, BET argues that Sony “do[es] not address the relevance,
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`materiality, and importance of the testimony any witnesses who allegedly could not be
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`subpoenaed might give.” BET Opposition at 13.
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`However, Sony has provided the names and last known locations of non-party witnesses
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`that may possess relevant prior art, and some of these witnesses are subject to compulsory
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`process only in the Northern District of California. See Motion to Transfer, at 16-17. This is
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`sufficient information for the Court to conclude that this factor weighs in favor of transfer.
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`Case 2:12-cv-02826-JPM-tmp Document 35 Filed 03/04/13 Page 8 of 13 PageID 403
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`Robocast, Inc. v. Apple, Inc., No. Civ. A. 11-235-RGA, 2012 WL 628010, at * 3 (D. Del. Feb.
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`24, 2012).
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`In addition, contrary to BET’s arguments, the ability to subpoena a prior art inventor for
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`testimony is regularly used as a factor in determining whether to grant motions to transfer. See,
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`e.g., In re Microsoft Corp., 630 F.3d 1361, 1363 (Fed. Cir. 2011) (granting writ of mandamus
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`because, inter alia, the defendant’s witnesses relating to prior art were located in the transferee
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`district); U.S. Ethernet Innovations, LLC v. Acer, Inc., No. 6:09-CV-448-JDL, 2010 WL
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`2771842, at *9 (E.D. Tex. July 13, 2010) (granting motion to transfer because “there [were]
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`potentially important non-party witnesses such as inventors, prior art witnesses, and the
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`prosecuting attorney” in the transferee District). Accordingly, this factor weighs in favor of
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`transfer.
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`B.
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`The Convenience of the Witnesses Favors Transfer
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`Because most, if not all, of the witnesses that Sony intends to call are located in or near
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`the Northern District of California, the convenience of the witnesses favors transfer. In support
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`of its motion to transfer, Sony provided declarations that describe how most, if not all, of the
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`Sony employees involved in the sales, marketing, finance, engineering, and testing of the
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`accused products are based in or near the Northern District of California. See Declaration of
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`Jennifer Y. Liu in Support of Sony’s Motion to Transfer at ¶ 7; Declaration of Matthew Seymour
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`in Support of Sony’s Motion to Transfer at ¶ 9; Declaration of Susana Capper in Support of
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`Sony’s Motion to Transfer at ¶ 7.
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`In addition, Sony’s motion to transfer addresses the inconvenience that would be imposed
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`upon Sony’s likely witnesses relating to non-infringement. See Motion to Transfer, at 13-14.
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`Nonetheless, BET demands an unreasonably detailed level of specificity. BET Opposition at 10
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`(citing Koh v. Microtek Int’l, Inc., 250 F. Supp. 2d 627, 636 (E.D. Va. 2003)). However, BET
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`fails to note that the court in Koh ruled that “it is permissible to infer, absent any contrary
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`evidence from the non-movant, that witnesses [who] are located at or near the center of the
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`allegedly infringing activities and [] witnesses involved in the design and manufacture of the
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`accused products are material.” Koh, 250 F. Supp. 2d at 636-37. The level of detail provided by
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`Sony is sufficient, especially at this stage in the litigation. Similarly, the Federal Circuit has
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`found that “[r]equiring a defendant to show that the potential witness has more than relevant and
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`material information at this point in the litigation or risk facing denial of transfer on that basis is
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`unnecessary.” In re Genentech, Inc., 566 F.3d 1338, 1343-44 (Fed. Cir. 2009) (emphasis added)
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`(citing In re Volkswagen of Am., Inc., 545 F.3d 304, 316 (5th Cir. 2008) (holding that defendants
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`moving for transfer were not required to submit affidavit evidence regarding the content and
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`relevancy of expected testimony)). Tellingly, none of the cases that BET cites require witnesses
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`to be identified by “name, position title, location, the subject matter on which they will testify, or
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`the burdens they would endure by traveling to Tennessee to testify.” BET Opposition at 11.
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`Moreover, BET’s demand for this information at this stage of the litigation conflicts with
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`“Congress’ intent to prevent the waste of time, energy and money and to protect litigants,
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`witnesses and the public against unnecessary inconvenience and expense.” In re EMC Corp.,
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`Misc. No. 142, 2013 WL 324154, at *2 (Fed. Cir. Jan. 29, 2013) (internal quotations omitted);
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`see also Fusion-IO, Inc., 12-139, 2012 WL 6634939, at *1 (Fed. Cir. Dec. 21, 2012).
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`C.
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`The Location of the Sources of Proof Favors Transfer
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`The fact that the sources of proof in these cases are located in or near the Northern
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`District of California favors transfer. BET does not dispute that most of the documents relating
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`to the accused products in the present litigations have no connection to the Western District of
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`Tennessee, and also does not dispute that many, if not all, of the relevant documents are actually
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`Case 2:12-cv-02826-JPM-tmp Document 35 Filed 03/04/13 Page 10 of 13 PageID 405
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`located in or near the Northern District of California. See In re Genentech, Inc., 566 F.3d 1338,
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`1345 (Fed. Cir. 2009); In re Nintendo, 589 F.3d at 1198.
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`While BET notes that “the majority of B.E.’s documents are and for years have been
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`maintained in the Western District of Tennessee,” BET does not provide any description as to the
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`volume or contents of these documents or where BET’s other documents are stored, other than to
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`note that BET’s accountant resides in Michigan. See BET Opposition at 14; Hoyle Decl. at ¶ 5.
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`In not providing this information, BET relies upon a proposition that has been rejected by the
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`Federal Circuit Court of Appeals. While BET argues that “[t]he location of documentary
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`evidence is increasingly less important in deciding motions to transfer,” BET Opposition at 14,
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`the Federal Circuit has held that the electronic nature of documents should not play a substantial
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`role in determining ease of access to sources of proof, because if it did, it would vitiate and
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`“render this factor superfluous.” In re Genentech, Inc. 566 F.3d at 1346 (citing In re Volkswagen
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`of Am., Inc., 545 F.3d 304, 316 (5th Cir. 2008) (en banc)). Moreover, one of the cases that BET
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`cites in support of its argument states explicitly that failure to consider location of evidence
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`because the factor was “outdated, irrelevant, and should be given little weight” is a clear abuse of
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`discretion. In re Link_A_Media Devices Corp., 662 F.3d 1221, 1224 (Fed. Cir. 2011) (“While
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`advances in technology may alter the weight given to these factors, it is improper to ignore them
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`entirely.”).
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`BET does not dispute that Sony will be producing the vast majority of documents in these
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`litigations. BET also does not dispute that Sony’s documents are, for the most part, located in or
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`near the Northern District of California. Based on this and on BET’s lack of specificity
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`regarding the volume and contents of documents it claims are located in this District, the location
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`of sources of proof favors transfer.
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`Case 2:12-cv-02826-JPM-tmp Document 35 Filed 03/04/13 Page 11 of 13 PageID 406
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`D.
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`The Convenience of the Parties Favors Transfer
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`Because the Western District of Tennessee is not BET’s home forum, and because BET
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`does not claim that BET itself would be burdened by transfer, the convenience of the parties
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`favors transfer of these cases. While BET argues that this factor favors denial of the motion to
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`transfer because BET is “located” in this District, and because companies such as Sony can
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`afford to litigate in any jurisdiction in which they conduct business, as discussed above, this
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`District is not BET’s home forum. Supra, II. Moreover, BET has offered no evidence regarding
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`its financial abilities or any burdens that it (as distinct from Mr. Hoyle) would face in light of
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`transfer.
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`BET has also failed to provide evidence that it conducts any business operations in
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`Tennessee, other than these litigations. In addition, BET’s claim that transfer would impose a
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`“financial burden” is based entirely on travel expenses of its C.E.O., Mr. Hoyle. BET
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`Opposition at 15. However, as C.E.O., Mr. Hoyle’s travel would be in furtherance of BET
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`business, rather than an unrelated burden, and would be personal to Mr. Hoyle, rather than being
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`borne by plaintiff BET.
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`IV.
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`THE PUBLIC INTEREST FACTORS FAVOR TRANSFER BECAUSE THE
`WESTERN DISTRICT OF TENNESSEE HAS LITTLE OR NO LOCAL
`INTEREST IN VINDICATION OF BET’S PATENT RIGHTS
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`In contrast to the Western District of Tennessee, the Northern District of California’s
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`local interest in this controversy is “strong because the cause of action calls into question the
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`work and reputation of several individuals residing in or near that District and who presumably
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`conduct business in that community.” In re Hoffman-La Roche Inc., 587 F.3d 1333, 1336 (Fed.
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`Cir. 2009). BET has not contested that the invention resulting in the patent in suit was conceived
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`when neither BET nor Mr. Hoyle was located in Tennessee. As such, the Western District of
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`Tennessee would have little interest in a case involving patents developed outside of Tennessee,
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`Case 2:12-cv-02826-JPM-tmp Document 35 Filed 03/04/13 Page 12 of 13 PageID 407
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`by a corporation that had conducted no business in the District before filing a lawsuit here in
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`September 2012, and whose only business conducted in the District to date continues to be the
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`present litigations. In addition, this District does not have an interest in these litigations merely
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`because services available via Sony products are available in Tennessee, because they are also
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`available throughout the country. In re TS Tech USA Corp., 551 F.3d 1315, 1321 (Fed. Cir.
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`2008).
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`Furthermore, though the center of gravity test “is generally applied in cases in which the
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`plaintiff does not bring suit in its home forum,” as discussed above, this is not BET’s home
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`forum, and the center of gravity test should therefore apply. Hunter Fan, 2006 WL 1627746, at
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`*3 (quoting Optima, Inc. v. Republic Indus., Inc., 1995 WL 72340, at *3 (E.D. La. Feb. 21,
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`1995)). Accordingly, the public interest in deciding localized interests at home weighs in favor
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`of transfer.
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`V.
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`ORAL ARGUMENT
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`In its Opposition brief, BET requests that the Court schedule a date and time for a hearing
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`on Sony’s motion to transfer. While Sony does not believe that there is a need for oral
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`arguments relating to this motion, Sony does not oppose BET’s request.
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`VI. CONCLUSION
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`For the reasons set forth above, Sony respectfully requests that the above-captioned cases
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`be transferred to the Northern District of California.
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`Case 2:12-cv-02826-JPM-tmp Document 35 Filed 03/04/13 Page 13 of 13 PageID 408
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`Respectfully submitted,
`
`/s/ Glen G. Reid, Jr.______
`Glen G. Reid, Jr. (#8184)
`WYATT, TARRANT & COMBS, LLP
`1715 Aaron Brenner Drive, Suite 800
`Memphis, TN 38120-4367
`Phone: 901.537.1000
`Facsimile: 901.537.1010
`greid@wyattfirm.com
`
`/s/ Mark Vorder-Bruegge, Jr.______
`Mark Vorder-Bruegge, Jr. (#06389)
`WYATT, TARRANT & COMBS, LLP
`1715 Aaron Brenner Drive, Suite 800
`Memphis, TN 38120-4367
`Phone: 901.537.1000
`Facsimile: 901.537.1010
`mvorder-bruegge@wyattfirm.com
`
`
`
`
`OF COUNSEL
`
`/s/ John Flock ___ ________
`John Flock (admission pending)
`jflock@kenyon.com
`Michael E. Sander (admission pending)
`msander@kenyon.com
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004-1007
`212.425.7200
`
`Attorneys for Defendants Sony Computer
`Entertainment America LLC, Sony Mobile
`Communications (U.S.A.) Inc., and Sony
`Electronics Inc.
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`CERTIFICATE OF SERVICE
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`The foregoing document was filed under the Court’s CM/ECF system, automatically
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`effecting service on counsel of record for all other parties who have appeared in this action on
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`the date of such service.
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`
`
`60332476.1
`3/4/2013 3:41 pm
`
`s/Mark Vorder-Bruegge, Jr.
`Mark Vorder-Bruegge, Jr.
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`
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`11