Case 2:12-cv-02831-JPM-tmp Document 39 Filed 01/29/13 Page 1 of 14 PageID 280
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`
`Civil Action No. 2:12-cv-02831 – JPM – tmp
`
`DEFENDANT’S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION
`TO TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404(a)
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`

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`Case 2:12-cv-02831-JPM-tmp Document 39 Filed 01/29/13 Page 2 of 14 PageID 281
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`TABLE OF CONTENTS
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`Page
`
`I.
`II.
`III.
`IV.
`
`V.
`
`INTRODUCTION ............................................................................................................. 1
`STATEMENT OF FACTS ................................................................................................ 1
`LEGAL STANDARDS ..................................................................................................... 3
`B.E.’S CHOICE OF FORUM DESERVES LITTLE OR NO DEFERENCE
`BECAUSE ITS PRESENCE IN TENNESSEE IS RECENT AND
`INSUBSTANTIAL............................................................................................................ 4
`THE PRIVATE INTEREST FACTORS FAVOR TRANSFER EVEN MORE
`STRONGLY, BECAUSE B.E. HAS IDENTIFIED ADDITIONAL THIRD
`PARTIES LOCATED IN CALIFORNIA. ........................................................................ 5
`A.
`B.E. has put at issue additional sources of proof likely to be located
`in or near the Northern District of California. ........................................... 6
`The Northern District of California is clearly a more convenient
`forum for the overwhelming majority of likely witnesses......................... 7
`The Northern District of California can compel the attendance of
`any of the likely non-party witnesses that are unwilling to testify. ........... 8
`B.E. CANNOT RELY ON ARTIFICIAL, SELF-CREATED CONVENIENCE
`TO MAINTAIN THIS SUIT IN AN OTHERWISE INCONVENIENT FORUM........... 8
`THE WESTERN DISTRICT OF TENNESSEE, UNLIKE THE NORTHERN
`DISTRICT OF CALIFORNIA, HAS LITTLE OR NO LOCALIZED INTEREST
`IN DECIDING THIS CASE.............................................................................................. 9
`VIII. CONCLUSION................................................................................................................ 10
`
`B.
`
`C.
`
`VI.
`
`VII.
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`- i -
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`Case 2:12-cv-02831-JPM-tmp Document 39 Filed 01/29/13 Page 3 of 14 PageID 282
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
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`Geotag, Inc. v. Aromatique, Inc.,
`No. 2:10-cv-570, slip op. (E.D. Tex. Jan. 14, 2013)......................................................3, 4, 6, 8
`
`Hertz Corp. v. Friend,
`130 S.Ct. 1181 (2010)................................................................................................................5
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)..................................................................................................6
`
`In re Nintendo Co., Ltd.,
`589 F.3d 1194 (Fed. Cir. 2009)..................................................................................................7
`
`In re TS Tech USA Corp.,
`551 F.3d 1315 (Fed. Cir. 2008)..................................................................................................9
`
`In re Zimmer Holdings, Inc.,
`609 F.3d 1378 (Fed. Cir. 2010)..................................................................................................5
`
`Koh v. Microtek Int’l, Inc.,
`250 F. Supp. 2d 627 (E.D. Va. 2003) ........................................................................................7
`
`Morris v. Safeco Ins. Co.,
`No. C. 07-2890 PJH, 2008 WL 5273719 (N.D. Cal. Dec. 19, 2008) ........................................8
`
`STATUTES
`
`28 U.S.C. § 1404(a) ...................................................................................................................4, 10
`
`35 U.S.C. § 299........................................................................................................................1, 3, 8
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`I.
`
`INTRODUCTION
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`B.E. Technology, LLC (“B.E.”) brought nineteen separate suits in this District against a
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`large number of defendants, the overwhelming majority of which are based in California,
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`alleging separate and independent infringement of two patents, U.S. Patent Nos. 6,628,314 and
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`6,771,290 (the “’290 patent”) (together, the “patents-in-suit”). B.E.’s ties to this District are new
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`and insubstantial,
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`in contrast with its long presence in Michigan and Louisiana. B.E.’s
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`relationship to Tennessee consists solely of (a) an application for certificate of authority to do
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`business in Tennessee, which was filed during the preparation for this suit, and (b) the alleged
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`presence of a single party witness, Martin David Hoyle, CEO of B.E. and named inventor of the
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`patents-in-suit. Hoyle’s relocation to Tennessee is not directly attributable to B.E. and his
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`presence is not particularly relevant, given that B.E. apparently continued its operations in
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`Michigan and Louisiana for six years after his initial move to Tennessee.
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`The Northern District of California is clearly a more convenient forum for this and the
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`other eighteen B.E. cases, because the bulk of relevant documentation and majority of likely
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`witnesses are located there. After Apple’s Motion to Transfer Venue (“Motion”) was filed, B.E.
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`put at issue additional products involving additional non-party witnesses, all associated with
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`companies located in California. And, B.E.’s attempts to manufacture a convenient forum
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`argument based solely on the self-created “judicial efficiency” concerns created by filing
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`nineteen independent—and independently inconvenient—lawsuits are unavailing. This tactic
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`contravenes the policies that led Congress to amend joinder rules for patent infringement actions
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`in the Smith-Leahy America Invents Act. 35 U.S.C. § 299.
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`II.
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`STATEMENT OF FACTS
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`B.E. filed its response to Apple’s Motion on January 7, 2013, accompanied by a
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`declaration from Mr. Hoyle.
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`(Dkt. 30.) That declaration demonstrates that, until it filed its
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`certificate of authority to do business with the State of Tennessee, there is no indication that B.E.
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`did anything at all in this State. In fact, it appears that B.E. did not consider filing for authority
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`to do business in Tennessee until Mr. Hoyle contemplated filing this suit.
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`(Decl. of Martin
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`David Hoyle (“Hoyle Decl.”), Dkt. 30-1, ¶ 8.) B.E. brought this suit sixteen days after its
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`certificate for authority was filed (Compl., Dkt. 1; Ex. A, B.E.’s Tennessee business registration,
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`September 6, 2012), but brought the first of its infringement actions the very next day.1 After
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`establishing and maintaining longstanding ties to Michigan and Louisiana (Ex. B, Business Plan,
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`May 8, 2000, at 30 (explaining in 2000 that B.E.’s “principal office of record is in Bay City,
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`Michigan and its operations are headquartered in New Orleans, Louisiana.”)), this certificate of
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`authority is the first indication that B.E. intended to locate any activity in Tennessee.
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`Mr. Hoyle appears to have maintained residency in Louisiana for the purpose of his B.E.
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`business, as indicated in a patent application data sheet filed on December 16, 2011, long after
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`his initial presence in Tennessee. (Ex. C, Application Data Sheet, Dec. 16, 2011.) Hoyle does
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`not appear to dispute this residency. (Hoyle Decl. ¶ 4.) Rather, Hoyle’s location in Tennessee is
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`due to reasons unrelated to his work for B.E. (Hoyle Decl. ¶¶ 2, 4.) To the extent that Hoyle’s
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`residence as an individual bears upon B.E.’s location, it appears that he maintained that residence
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`in Louisiana until very recently.
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`On January 7, 2013, after Apple’s motion to transfer was filed, B.E. served its Initial
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`Infringement Contentions, pursuant to LPR 3.1. Those Infringement Contentions identify
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`additional, newly accused products, features and functionalities of third parties2, each of which is
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`1 See Case No. 12-cv-02767-JPM-tmp, filed September 7, 2012.
`2 While B.E.’s Infringement Contentions accuse products and features that are not referenced
`anywhere in its barebones Complaint, it recently filed a motion (Dkt. 38) seeking to dismiss and
`strike Apple’s affirmative defenses and declaratory judgment counterclaims, on the incongruous
`theory that they lack sufficient detail regarding, among other things, non-infringement by
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`based in California. In particular, B.E. alleges infringement by products from Netflix, Hulu Plus
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`and YouTube. (Ex. D, Chart with Initial Infringement Contentions for the ’290 patent, at 7, 11,
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`32, 50.) Each of the companies responsible for these technologies is headquartered in California:
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`Netflix, Inc. in Los Gatos (Ex. E, Netflix, Inc. SEC Form 10-Q, Sep. 30, 2012, at 1); YouTube,
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`Inc. in San Bruno (Ex. F, Google San Bruno (YouTube), http://www.google.com/about/jobs/
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`locations/san-bruno/ (last visited Jan. 29, 2013)); and Hulu, LLC in Los Angeles (Ex. G, Hulu
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`Company Information, http://www.jigsaw.com/id538794/hulu_company.xhtml (last visited Jan.
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`29, 2013)), with both Netflix and YouTube headquartered within the Northern District of
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`California.
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`On January 10, 2013, after Apple’s Motion was filed, the parties filed a Patent
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`Scheduling Conference Notice pursuant to LPR 2.1(a), in which B.E. argues that this case should
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`be consolidated with the other cases it has filed in the Western District of Tennessee for
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`conference, discovery, claim construction proceedings and trial on invalidity and
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`unenforceability. (Dkt. 31 at 1, 3-4, 8.)
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`III.
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`LEGAL STANDARDS
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`In the Leahy-Smith America Invents Act, Congress limited joinder in patent cases to
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`defendants whose alleged liability “aris[es] out of the same transaction, occurrence, or series of
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`transactions or occurrences …” or involves common questions of fact. 35 U.S.C. § 299. The
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`purpose of this amendment applies with equal force to transfer of separate cases related only by
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`virtue of the assertion of a common set of patents. Geotag, Inc. v. Aromatique, Inc., No. 2:10-
`
`cv-570, slip op. at 10 (E.D. Tex. Jan. 14, 2013)3.
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`In Geotag, the district court rejected the
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`plaintiff’s argument that transfer would undermine judicial economy, notwithstanding plaintiff’s
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`products that were not accused in that barebones Complaint.
`3 This slip opinion is attached as exhibit H, pursuant to LR 7.2(h).
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`filing of “over 100 cases against in excess of 400 defendants.” Id. “Otherwise, a plaintiff could
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`manipulate venue by serially filling cases within a single district. Allowing a plaintiff to
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`manufacture venue based on this alone would undermine the principals [sic] underpinning
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`transfer law and the recently enacted America Invents Act.” Id.
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`In documents filed and served after Apple filed its motion to transfer venue, B.E. raised
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`several issues that tilt the balance of convenience factors even more firmly towards the Northern
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`District of California. B.E.’s connection to the Western District of Tennessee appears even more
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`tenuous in light of the recent history of corporate operations in Louisiana. B.E. has accused
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`additional devices and technology developed and owned by third parties, which likely will
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`require discovery, depositions and testimony in California. Moreover, B.E. asks this court to
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`consolidate each of its nineteen infringement suits in the interest of judicial efficiency and
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`convenience, on one hand (Dkt. 31 at 1, 3-4, 8), but to ignore the aggregate costs inflicted on
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`those defendants in balancing the conveniences between the competing forums.
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`(Dkt. 30 at 8-9,
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`12 (focusing on costs to Apple yet ignoring costs to other defendants).) B.E. cannot have it both
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`ways, balancing its own interests against
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`those of all
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`the other parties for purposes of
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`consolidation, while ignoring the cumulative costs that its venue choice inflicts on all those
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`defendants when balancing the conveniences under Section 1404(a).
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`IV.
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`B.E.’S CHOICE OF FORUM DESERVES LITTLE OR NO DEFERENCE
`BECAUSE ITS PRESENCE IN TENNESSEE IS RECENT AND
`INSUBSTANTIAL.
`
`B.E. bases much of its argument on Mr. Hoyle’s ties to Tennessee, but B.E. is the
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`plaintiff in this case, not its founder, Mr. Hoyle. While Mr. Hoyle allegedly is a Tennessee
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`resident, the most that can be said for B.E.’s own presence in the Western District of Tennessee
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`is that it is recent and insubstantial. In contrast to its longstanding connection with Michigan and
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`Louisiana, B.E. registered to do business in Tennessee only after it had decided to bring suit.
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`(Hoyle Decl. ¶ 8.) B.E. apparently asserted for the first time in its application for certificate of
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`authority that its principal office was in Tennessee.
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`(Ex. A.) Prior to filing this suit, B.E.
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`maintained its operations in Louisiana.
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`(Ex. B at 30.) The recent registration in Tennessee,
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`admittedly in contemplation of litigation, should be closely scrutinized. In re Zimmer Holdings,
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`Inc., 609 F.3d 1378, 1381 (Fed. Cir. 2010).
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`In Zimmer Holdings, the plaintiff, MedIdea, claimed that its principal place of business
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`was in the Eastern District of Texas, where it brought suit, and where it had moved
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`documentation relevant to the litigation.
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`Id. at 1379, 1381. The court declined to defer to
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`MedIdea’s choice of venue, because MedIdea’s presence “appear[ed] to be recent, ephemeral,
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`and an artifact of litigation.” Id. at 1381. B.E., like MedIdea, asserts that its documentation
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`related to this case has been in the Western District of Tennessee for some time, but nevertheless
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`appears to have operated out of Louisiana during the same period. Hoyle claims that B.E.’s
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`corporate documents have been in Tennessee since 2006. (Hoyle Decl. ¶ 7.) Their presence in
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`this district did not prevent him from “tak[ing] steps to establish residency in Louisiana,” (Hoyle
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`Decl. ¶ 4), nor indeed from maintaining residency there for the purpose of B.E. patents. (Ex. C.)
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`In fact, the only change for B.E. itself was filing an application for certificate of authority to do
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`business in Tennessee in anticipation of this suit.
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`Such a recent administrative change,
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`admittedly initiated while preparing for this suit, should not be allowed to trump the other
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`factors, which weigh in favor of transfer. In re Zimmer Holdings, Inc., 609 F.3d at 1381 (noting
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`that courts should “ensure that the purposes of jurisdictional and venue laws are not frustrated by
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`a party’s attempts at manipulation”) (citing Hertz Corp. v. Friend, 130 S.Ct. 1181, 1195 (2010)).
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`V.
`
`THE PRIVATE INTEREST FACTORS FAVOR TRANSFER EVEN MORE
`STRONGLY, BECAUSE B.E. HAS IDENTIFIED ADDITIONAL THIRD
`PARTIES LOCATED IN CALIFORNIA.
`
`B.E. has widened the scope of relevant documentation and increased the number of
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`witnesses with relevant testimony by accusing products from Netflix, Hulu Plus and YouTube of
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`infringement. Both Apple and B.E. will require discovery and possibly witness testimony in
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`connection with these technologies, each of which was developed and is now owned by third
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`parties. Each of the companies that own these technologies are headquartered in California, two
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`of them within the Northern District of California. The addition of these accused technologies
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`lends further weight to the convenience of the Northern District of California.
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`A.
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`B.E. has put at issue additional sources of proof likely to be located in or near
`the Northern District of California.
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`The bulk of documents relevant to this case are likely to come from Apple, and now
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`Netflix, Hulu and YouTube, increasing the weight of the first private factor in favor of transfer.
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`In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009) (“In patent infringement cases, the
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`bulk of the relevant evidence usually comes from the accused infringer. Consequently, the place
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`where the defendant’s documents are kept weighs in favor of transfer to that location.”) By
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`accusing additional technologies, the owners of which are located in California, B.E. has made
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`the Northern District of California even more convenient and the Western District of Tennessee
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`less so. The documents relevant to the design and operation of the additional technologies likely
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`are located in California, and for Hulu and Netflix, in the Northern District of California. Both
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`Apple and B.E. will require access to these non-parties’ documents during the course of this
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`case, access to which will be more convenient if this case is transferred to the Northern District
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`of California. Despite technological advances, electronic storage has not eliminated the
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`consideration of physical location from this inquiry. Geotag, Inc., No. 2:10-cv-570, slip op. at 3
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`(citing In re Genentech, Inc., 566 F.3d at 1345-46).
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`Although Hoyle asserts that his B.E. files related to this action have been in the Western
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`District of Tennessee for some time, correspondence with the United States Patent and
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`Trademark office lists Hoyle in his capacity as inventor as resident in Louisiana. It appears then
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`that Hoyle considered himself
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`resident
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`in Louisiana for
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`the purpose of B.E. patents,
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`notwithstanding the presence of his documents in Tennessee.
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`It was apparently convenient
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`enough at that time to conduct his work outside of Tennessee and it is unlikely now that the same
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`situation has become inconvenient.
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`B.
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`The Northern District of California is clearly a more convenient forum for
`the overwhelming majority of likely witnesses.
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`In addition to Apple employees with knowledge relevant to this litigation, B.E. has now,
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`with its Infringement Contentions, put at issue products of third parties which likely will require
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`testimony of non-party witnesses. Because two of these third parties are located in the Northern
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`District of California, and the third in California outside of the Northern District, it can be
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`expected that the witnesses with relevant knowledge are in California and would be forced to
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`travel at substantial inconvenience and expense to the Western District of Tennessee if this case
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`is not transferred. In re Nintendo Co., Ltd., 589 F.3d 1194, 1199 (Fed. Cir. 2009). Though B.E.
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`argues that a motion to transfer venue must contain specific names, titles and locations of
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`witnesses and the content of their testimony, district courts recognize that:
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`there is a tension in transfer motions between the duty to file such motions early
`in the action and the need to support that motion with affidavits identifying
`witnesses and the materiality of their testimony, information which may not be
`known until later in the case. Furthermore, it is permissible to infer, absent any
`contrary evidence from the non-movant, that witnesses are located at or near the
`center of the allegedly infringing activities and that witnesses involved in the
`design and manufacture of the accused products are material.
`
`Koh v. Microtek Int’l, Inc., 250 F. Supp. 2d 627, 636-37 (E.D. Va. 2003) (citations and internal
`
`quotation marks omitted).
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`In contrast to the large number of potential witnesses in California – employees of both
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`Apple and of third parties – only Hoyle, an officer of the plaintiff, resides in the Western District
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`of Tennessee. On balance, the costs associated with proceedings in the Northern District of
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`California are likely to be significantly less (or materially the same for any B.E. witnesses in
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`Michigan or Louisiana) than the cost of retaining this case in the Western District of Tennessee,
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`with the singular exception of Hoyle, an officer of a party. Because proceedings in the Northern
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`District of California would be significantly more convenient for the overwhelming majority of
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`likely witnesses, but less convenient for only a single individual who is, for all intents and
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`purposes, a party witness, the third private interest factor weighs heavily in favor of transfer.
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`C.
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`The Northern District of California can compel the attendance of any of the
`likely non-party witnesses that are unwilling to testify.
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`Because B.E. has accused additional products of non-parties,
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`it has increased the
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`likelihood that
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`testimony will be required of non-party witnesses who possess material
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`information, but who are unwilling to testify. Further, it is likely that these potential witnesses,
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`who are associated with third parties located in California, will be subject to the subpoena power
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`of the Northern District of California, but not of the Western District of Tennessee. See Morris
`
`v. Safeco Ins. Co., No. C. 07-2890 PJH, 2008 WL 5273719, at *5 (N.D. Cal. Dec. 19, 2008)
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`(explaining that the subpoena power of California district courts extends throughout the state).
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`Thus, the addition of accused products increases the weight of the second private interest factor
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`in favor of transfer.
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`VI.
`
`B.E. CANNOT RELY ON ARTIFICIAL, SELF-CREATED CONVENIENCE TO
`MAINTAIN THIS SUIT IN AN OTHERWISE INCONVENIENT FORUM.
`
`A plaintiff cannot transform an otherwise inconvenient forum by bringing multiple suits
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`there. Geotag, Inc., No. 2:10-cv-570, slip op. at 10. Yet B.E. attempts to rely on “efficiencies”
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`of its own design to make the Western District of Tennessee appear convenient. (Dkt. 30 at 16.)
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`As demonstrated above, however, these alleged “efficiencies” are inconsistent with the policies
`
`underlying Congress’ enactment of the amended joinder rules in 35 U.S.C. § 299. Geotag, Inc.,
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`No. 2:10-cv-570, slip op. at 10.
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`Moreover, B.E. studiously ignores the flip side of its purported efficiencies, treating the
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`costs and inconvenience of Apple separately from the defendants in the other cases. (Dkt. 30 at
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`8-9, 12.) While Apple believes that the inconvenience to the myriad engineers and business
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`people responsible for
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`the dozens of Apple products accused by B.E. outweighs any
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`inconvenience to Mr. Hoyle, the imbalance in the efficiencies becomes even more apparent when
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`weighed against the aggregate inconvenience B.E. imposes on all the defendants in its nineteen
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`cases. If the efficiencies of consolidating proceedings for the many defendants in these cases are
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`to be considered, as B.E. urges (Dkt. 31 at 1, 3-4, 8), the aggregate costs imposed by the choice
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`of forum should also be weighed. B.E. cannot rely on aggregation due to its own manipulation
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`for one purpose but entirely ignore it for another.
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`VII.
`
`THE WESTERN DISTRICT OF TENNESSEE, UNLIKE THE NORTHERN
`DISTRICT OF CALIFORNIA, HAS LITTLE OR NO LOCALIZED INTEREST
`IN DECIDING THIS CASE.
`
`Apple is a large, established corporate citizen in the Northern District of California,
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`whose connection to the Western District of Tennessee is limited to selling products there, as it
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`does nationwide. However, the local interest of a forum is not entitled any unique weight when
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`the accused products are distributed on a national scale.
`
`In re TS Tech USA Corp., 551 F.3d
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`1315, 1321 (Fed. Cir. 2008) (explaining that “the citizens of the [forum] have no more or less of
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`a meaningful connection to this case than any other venue” when the accused products “were
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`sold throughout the United States.”). The Western District of Tennessee has little or no interest
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`in this case involving patents developed elsewhere, that are owned by B.E., a corporation that
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`has done no business in the District until recently and then only contemplation of this suit. The
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`public interest in deciding localized interests at home therefore weighs in favor of transfer to the
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`Northern District of California.
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`VIII.
`
`CONCLUSION
`
`For the additional foregoing reasons, Apple respectfully requests that this Court transfer
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`this case to the U.S. District Court for the Northern District of California pursuant to 28 U.S.C. §
`
`1404(a).
`
`Respectfully submitted on January 29, 2013,
`
`s/Srecko Vidmar
`Clay C. James
`Srecko “Lucky” Vidmar (Colo. Bar No. 34921)
`C. Matthew Rozier
`HOGAN LOVELLS US LLP
`One Tabor Center, Suite 1500
`1200 Seventeenth Street
`Denver, CO 80202
`Telephone: (303) 899-7300
`Facsimile: (303) 899-7333
`clay.james@hoganlovells.com
`lucky.vidmar@hoganlovells.com
`matt.rozier@hoganlovells.com
`
`Glen G. Reid, Jr.
`Mark Vorder-Bruegge, Jr.
`WYATT, TARRANT & COMBS, LLP

`1715 Aaron Brenner Dr., Suite 800
`Memphis, TN 38120-4367
`Telephone: 901.537.1000
`Facsimile: 901.537.1010
`
`Counsel for Defendant APPLE 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.
`
`s/Srecko “Lucky” Vidmar
`Srecko “Lucky” Vidmar