Case 2:17-cv-00513-JRG Document 197-3 Filed 09/05/18 Page 1 of 22 PageID #: 11230
`Case 2:17-cv-00513-JRG Document 197-3 Filed 09/05/18 Page 1 of 22 PageID #: 11230
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`EXHIBIT 2
`EXHIBIT 2
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`Case 2:17-cv-00513-JRG Document 197-3 Filed 09/05/18 Page 2 of 22 PageID #: 11231
`Case 2:17-cv-00513-JRG Document 56 Filed 12/12/17 Page 1 of 21 PageID #: 1112
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Case No. 2:17-CV-0513-JRG
`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`§ § § § § § § § § § §
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`v.
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`HUAWEI DEVICE USA INC., ET AL.,
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`Defendants.
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC(cid:146)S OPPOSITION TO
`THE HUAWEI DEFENDANTS(cid:146) MOTION TO TRANSFER VENUE
`TO THE NORTHERN DISTRICT OF CALIFORNIA (DKT. NO. 36)
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`

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`TABLE OF CONTENTS
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`Page No(s).
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`INTRODUCTION .......................................................................................................................... 1
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`FACTUAL BACKGROUND......................................................................................................... 3
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`A. AGIS Software Development, LLC, AGIS, Inc., and AGIS Holdings, LLC............... 3
`
`B.
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`AGIS(cid:146)s Witnesses......................................................................................................... 4
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`C.
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`Huawei(cid:146)s Witnesses and Connections to This District................................................. 5
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`D. Non-Party Witnesses .................................................................................................... 6
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`ARGUMENT.................................................................................................................................. 7
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`I. The Applicable Legal Standards for Transfer of Venue ...................................................... 7
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`II.
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`The Private Interest Factors All Weigh Against Transfer................................................ 8
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`A.
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`Ease of Access to Sources of Proof Weighs Against Transfer..................................... 8
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`B.
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`This District is More Convenient for Willing Witnesses ........................................... 10
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`C.
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`Availability of Compulsory Process Also Disfavors Transfer ................................... 13
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`D.
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`Judicial Economy Favors This District ...................................................................... 14
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`III. The Public Interest Factors Weigh Strongly Against Transfer ...................................... 14
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`A.
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`This District(cid:146)s Strong Localized Interest Weighs Against Transfer........................... 14
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`B.
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`Faster Disposition in This District Weighs Against Transfer..................................... 15
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`C.
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`Other Public Interest Factors Are Neutral and Do Not Support Transfer .................. 15
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`CONCLUSION............................................................................................................................. 15
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`i
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Aerielle, Inc. v. Monster Cable Prod., Inc.,
`No. 206CV382TJW, 2007 WL 951639 (E.D. Tex. Mar. 26, 2007) ..................................12, 13
`
`AGCS Marine Ins. Co. v. Associated Gas & Oil Co.,
`775 F. Supp. 2d 640 (S.D.N.Y. 2011)......................................................................................11
`
`Aloft Media, LLC v. Adobe Sys.,
`No. 6:07(cid:150)CV(cid:150)355, 2008 WL 819956 (E.D. Tex. Mar. 25, 2008).................................7, 11, 13
`
`Beijing Zhongyi Zhongbiao Elec. Info. Tech. v. Microsoft Corp.,
`No. 4:12-CV-4077, 2013 WL 3808009 (W.D. Ark. July 22, 2013)......................................8, 9
`
`Cell & Network Selection, LLC v. AT & T Mobility LLC,
`No. 6:11-CV-706 LED-JDL, 2013 WL 1855972, at *5 (E.D. Tex. Apr. 29,
`2013) ........................................................................................................................................14
`
`ContentGuard Holdings, Inc. v. Amazon.com, Inc., et al.,
`No. 2:13-cv-01112-JRG, D.I. 110-17, at ¶ 6 (E.D. Tex. Feb. 15, 2014) ...................................1
`
`Continental Grain Co. v. The FBL-585,
`364 U.S. 19 (1960)...................................................................................................................14
`
`Core Wireless Licensing v. Apple,
`2013 WL 682849 *at 4 (E.D. Tex. 2013) ................................................................................12
`
`Eidos Display, LLC v. AU Optronics Corp.,
`No. 6:11CV201 LED-JDL, 2011 WL 13098296, at *2 (E.D. Tex. Dec. 21,
`2011) ........................................................................................................................................12
`
`Frito-Lay N. Am., Inc. v. Medallion Foods, Inc.,
`867 F. Supp. 2d 859 (E. D. Tex. 2012)..................................................................10, 11, 13, 14
`
`Gulf Oil Corp. v. Gilbert,
`330 U.S. 501 (1947)...................................................................................................................7
`
`In re Horseshoe Entm(cid:146)t,
`337 F.3d 429 (5th Cir. 2003) .....................................................................................................8
`
`Mangosoft Intellectual Property, Inc. v. Skype Techs. SA,
`2007 WL 2008899 (E.D. Tex. July 5, 2007) ...........................................................................11
`
`Mears Techs., Inc. v. Finisar Corp.,
`No. 2:13-cv-376-JRG, 2014 WL 1652603 (E.D. Tex. April 24, 2014).....................................7
`
`ii
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`Network-1 Sec. Sols., Inc. v. D-Link Corp.,
`433 F. Supp. 2d 795 (E.D. Tex. 2006).................................................................................9, 15
`
`PersonalWeb Technologies, LLC v. NEC Corp. of Am., Inc.,
`No. 6:11-CV-655, 2013 WL 9600333 (E.D. Tex. Mar. 21, 2013) ....................................13, 14
`
`Regents of Univ. of Cal. v. Eli Lilly & Co.,
`119 F.3d 1559 (Fed. Cir. 1997)..................................................................................................8
`
`Rossco Holdings Inc. v. Best W. Int’l Inc.,
`No. H-06-0155, 2006 WL 1007474 (S.D. Tex. Apr. 18, 2006)...............................................11
`
`Shoemake v. Union Pacific R.R. Co.,
`233 F. Supp. 2d 828 (E.D. Tex. 2002).....................................................................................11
`
`Uniloc USA, Inc. v. Tangome, Inc.,
`No. 6:16-CV-380-JRG, 2016 WL 9240543 (E.D. Tex. Nov. 14, 2016)..................................12
`
`Vertical Computer Sys., Inc. v. LG Elecs. MobileComm U.S.A., Inc.,
`No. 2:10-CV-490-JRG, 2013 WL 2241947 (E.D. Tex. May 21, 2013) ..................................15
`
`In re Vistaprint,
`628 F.3d 1342 (Fed. Cir. 2010)................................................................................................14
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) (Volkswagen I) ........................................................................7, 8
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) (en banc) (Volkswagen II)...........................................................7
`
`In re Volkswagen of Am., Inc.,
`566 F.3d 1349 (Fed. Cir. 2009)................................................................................................14
`
`Statutes
`
`28 U.S.C. § 1404(a) .....................................................................................................................1, 7
`
`Other Authorities
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`Rule 3-1(g) .......................................................................................................................................9
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`iii
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`Plaintiff AGIS Software Development LLC ((cid:147)Plaintiff(cid:148) or (cid:147)AGIS(cid:148)) hereby opposes
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`Defendants Huawei Device USA Inc., Huawei Device Co., Ltd., and Huawei Device (Dongguan)
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`Co., Ltd.(cid:146)s (collectively, (cid:147)Huawei(cid:148)) motion to transfer this action to the Northern District of
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`California under 28 U.S.C. § 1404(a) (the (cid:147)Motion(cid:148)). (Dkt. 36). This motion should be denied
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`because Huawei has failed to show that the Northern District of California is clearly more
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`convenient for party witnesses, non-party fact and expert witnesses, and because Huawei has not
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`shown that the other relevant factors weigh in favor of transfer.
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`INTRODUCTION
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`Huawei has failed to demonstrate that the convenience factors justify transferring this
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`case to the Northern District of California. Huawei manufactures a dispute by injecting an
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`irrelevant third party, Life360, Inc., into the present dispute. Despite Huawei(cid:146)s speculation,
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`AGIS does not assert in this case that Life360, Inc. infringes any of the Patents-in-Suit and no
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`Life360 product was included in AGIS(cid:146)s Preliminary Infringement Contentions. Additionally,
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`Huawei relies on the convenience of non-party Google as if it were a named defendant. While
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`AGIS has accused functionality related to Google(cid:146)s Android Operating System, much of that is
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`publicly available through either open source code or public application programming interfaces
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`((cid:147)API(cid:148)). In this case, AGIS accuses Huawei(cid:146)s smartphones and tablets of infringing the Patents-
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`in-Suit(cid:150)(cid:150)not Google(cid:146)s devices. Even if Google were to possess relevant documents and employ
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`individuals who have knowledge about the Accused Products and functionality, Huawei has not
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`demonstrated how any specific Google witness or document would necessitate transfer to the
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`Northern District of California. AGIS and Huawei are the parties to this case and their
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`substantial connections to this District weigh heavily against transfer.
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`

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`Defendant Huawei Device USA, Inc. ((cid:147)Huawei USA(cid:148)) is incorporated in Texas and
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`headquartered in Plano, Texas, where it employs several hundred workers. Despite Huawei(cid:146)s
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`denials, it is difficult to believe that no documents or witnesses relating in any way to the
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`accused smartphones, tablets and other devices are in this District. Moreover, by Huawei(cid:146)s own
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`admission, the location of witnesses and documents related to the design and manufacture of the
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`Accused Products is China, not the Northern District of California. The Northern District of
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`California is not more convenient (let alone (cid:147)clearly more convenient(cid:148)) than the Eastern District
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`of Texas for these Chinese witnesses. Huawei(cid:146)s contention that any of its U.S. employees with
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`relevant technical information are at its facilities in Santa Clara, Mountain View and San Diego
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`should be given no weight because Huawei does not identify even a single potential witness or a
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`shred of evidence at any of those locations that would justify transfer. Huawei USA identifies
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`only a single witness, one with knowledge of sales and marketing, and he is located in Bellevue,
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`Washington, not in the Northern District of California.
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`AGIS(cid:146)s witnesses and many of the expected non-party witnesses would be greatly
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`inconvenienced if this case were transferred. AGIS(cid:146)s sister company, AGIS, Inc., maintains an
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`office in Austin, Texas, where an AGIS witness lives and works. Moreover, AGIS regularly
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`works with a consultant in Allen, Texas who is likely to be a key witness regarding software
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`development for products related to the Patents-in-Suit. All of AGIS(cid:146)s other key fact witnesses
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`are located in either Jupiter, Florida or Lenexa, Kansas, which are both substantially closer to the
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`courthouse in Marshall, Texas than to the Northern District of California. This includes AGIS(cid:146)s
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`founder, CEO and named inventor, Malcolm (cid:147)Cap(cid:148) Beyer.
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`AGIS has significant ties to this District. AGIS and its related companies have offices in
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`Marshall and Austin, and Mr. Beyer has longstanding business and personal ties to this District
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`2
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`and to the State of Texas, as do several other AGIS Inc. employees. Finally, because this case
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`has been pending for almost 6 months and is already well into discovery, and because closely-
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`related suits are also being litigated in this District, judicial economy favors leaving this action in
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`the Eastern District of Texas. For all of these reasons and those stated in more detail below,
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`Huawei(cid:146)s motion should be denied.
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`FACTUAL BACKGROUND
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`A.
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`AGIS Software Development, LLC, AGIS, Inc., and AGIS Holdings, LLC
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`AGIS, Inc. was founded by former U.S. Marine Cap Beyer in 2004. AGIS, Inc.(cid:146)s
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`primary business has revolved around offering the (cid:147)LifeRing(cid:148) solution which includes software
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`and servers that enable mobile devices to securely establish ad hoc digital networks. Declaration
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`of Malcolm K. Beyer ((cid:147)Beyer Decl.(cid:148)), attached hereto as Exhibit A, at ¶ 12. LifeRing has been
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`sold to military, defense, first-responder, and private industry customers since 2004. Id. AGIS
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`Inc. also offers a smartphone-based emergency broadcast and response command control system
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`for first responders called (cid:147)ASSIST.(cid:148) Id.
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`In 2017, Mr. Beyer and the other AGIS Inc. shareholders formed AGIS Holdings,
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`Incorporated ((cid:147)AGIS Holdings(cid:148)), a Florida corporation. Id. at ¶ 7. AGIS Holdings consists of
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`two subsidiaries, AGIS Inc. and Plaintiff, which is a Texas limited liability company. Id. AGIS
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`holds the rights, by assignment, to each of the Patents-in-Suit and licenses its patent portfolio to
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`AGIS Inc. AGIS(cid:146)s principal place of business is located at 100 W. Houston Street, Marshall,
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`Texas. Id. at ¶ 9. AGIS Inc. has offices in Lenexa, Kansas, Jupiter, Florida and Austin, Texas.
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`Id. at ¶ 10. All of AGIS and AGIS Inc.(cid:146)s employees with the exception of one are located
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`significantly closer to this District than the Northern District of California. See id. at ¶¶ 19-20.
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`3
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`

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`B.
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`AGIS(cid:146)s Witnesses
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`The witnesses AGIS expects to rely on are located in or much closer to this District than
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`to Northern California. Mr. Beyer, who is AGIS(cid:146)s CEO, will be one of AGIS(cid:146)s primary
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`witnesses. Beyer Decl., at ¶ 5. Mr. Beyer lives in Jupiter, Florida, approximately 940 miles
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`from the courthouse in Marshall, and 2,560 miles from the courthouse in California. Id.
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`Mr. Beyer possesses highly relevant knowledge regarding the conception and reduction to
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`practice of the Patents-in-Suit and has longstanding ties to this District. Id. Mr. Beyer(cid:146)s family
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`has owned over 2,500 acres of land in Bowie County since 1867, and he has personally owned
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`412 acres of land in Bowie County since 2001. Id. at ¶ 22.
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`David Sietsema is expected to be another key fact witness in this case. Mr. Sietsema has
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`worked for AGIS Inc. and its related companies for more than 10 years. His responsibilities
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`include overseeing contracts and licenses for AGIS and its related entities, as well as ensuring
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`compliance with rules and contractual clauses linked to intellectual property rights. Id. at ¶ 17.
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`Mr. Sietsema lives and works in Austin, Texas, 1,200 miles closer to the courthouse in Marshall
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`than the courthouse in the Northern District of California. Declaration of Vincent Rubino
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`((cid:147)Rubino Decl.(cid:148)), attached hereto as Exhibit B, at ¶ 4.
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`Sandel Blackwell is expected to be another key witness for AGIS. Mr. Blackwell is the
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`President of AGIS Inc. and a Director of AGIS Inc. and AGIS. Beyer Decl., at ¶ 18.
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`Mr. Blackwell manages the development of the software included in the LifeRing and Assist
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`solutions. Id. Mr. Blackwell works at AGIS Inc.(cid:146)s Lenexa, Kansas office, as well at its office in
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`Jupiter, Florida. Id. Mr. Blackwell maintains regular communication with AGIS Inc.(cid:146)s
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`programmers and software developers in Florida, Kansas, and Texas, and regularly works with
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`an AGIS consultant in this District. Id. Mr. Blackwell’s office in Lenexa, Kansas is 444 miles
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`from Marshall and 1,498 miles to the Northern District of California. Rubino Decl., at ¶ 4.
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`4
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`

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`Mr. Blackwell owns land in Jasper County, Texas, has close personal ties to Texas and travels
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`here frequently. Beyer Decl. at ¶ 18.
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`An important non-party witness for AGIS will be Eric Armstrong, a former AGIS Inc.
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`employee who is now a full-time consultant for AGIS and AGIS Inc. Mr. Armstrong is
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`responsible for designing and developing client-side and server-side software for the LifeRing
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`and Assist solutions. Id. at ¶ 16. Mr. Armstrong lives and works in Allen, Texas, in this District.
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`Id. at ¶ 15. Mr. Armstrong works closely with Mr. Blackwell and AGIS Inc. employees, such as
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`Rebecca Clarke, regarding software development and quality assurance. Id. at ¶ 16.
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`Mr. Armstrong is expected to have documents relevant to this action in his office in this District,
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`including e-mails regarding the development of software and marketing which are stored on his
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`computer. Id. Transfer to the Northern District of California will require Mr. Armstrong to
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`travel approximately 1,300 additional miles to testify at trial, and will put him beyond the
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`subpoena power of the court. See Rubino Decl., at ¶ 4. Another important non-party witness for
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`AGIS will be its technical expert, Joseph C. McAlexander, whose office is located at 101 Renner
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`Trail # 350, Richardson, Texas. Id. at ¶ 8. None of AGIS(cid:146)s expected witnesses are located in the
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`Northern District of California.
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`C.
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`Huawei(cid:146)s Witnesses and Connections to This District
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`Huawei(cid:146)s U.S. headquarters is in Plano, Texas. See Declaration of Yao Wang ((cid:147)Wang
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`Decl.(cid:148)), Dkt. 36-3 at ¶ 3. For years, Huawei conducted its research and development activities in
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`Plano. Rubino Decl., at ¶ 15. While Huawei suggests that its proof relating to the development
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`and testing of relevant products is more likely to be in its Santa Clara, Mountain View or San
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`Diego, California locations (Wang Decl. at ¶¶ 5, 8), this does not require transfer. Mr. Wang
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`does not identify a single witness from Huawei USA involved in research and development at
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`any of these facilities. The only employee he does name, Wen Wen, responsible for sales and
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`5
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`marketing, is located in Bellevue, Washington. Even so, this does not weigh in favor of transfer
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`as, in a prior action, Huawei USA(cid:146)s James Jiang stated that (cid:147)records and documents relating to
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`development, sales, and marketing of its smartphones are equally accessible in Huawei USA(cid:146)s
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`Plano and California facilities.(cid:148) Rubino Decl., at ¶ 2.1
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`D.
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`Non-Party Witnesses
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`Huawei relies heavily on the fact that the majority of the accused infringing applications
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`were provided by Google (Motion at 1). Even if this is relevant to whether Huawei infringes,
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`which it is not, this does not require transfer. Google employee Andrew Oplinger attests to the
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`fact that much of the work on Google Maps for Mobile ((cid:147)GMM(cid:148)) takes place in Mountain View
`
`and San Francisco, but acknowledges that the Technical Lead Manager for GMM and location
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`sharing functionality is located in Sydney, Australia, as are some of the relevant documents
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`and/or source code. Oplinger Decl. Dkt. 36-4 at ¶¶ 4, 6. The Northern District of California is
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`not clearly more convenient than the Eastern District of Texas for non-party witnesses in
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`Australia. Moreover, Google has long employed over 450 workers in Austin, some of whom
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`should have knowledge about the Google products Huawei considers relevant. Rubino Decl., at
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`¶ 6.3 This District is also more convenient for anticipated non-party witnesses from AT&T,
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`Sprint, and Verizon, whom AGIS believes will provide information about the value of the
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`accused software.
`
`1 ContentGuard Holdings, Inc. v. Amazon.com, Inc., et al., No. 2:13-cv-01112-JRG, D.I. 110-17, at ¶ 6
`(E.D. Tex. Feb. 15, 2014)
`3 According to a 2017 press release, Google’s Austin employees work on products teams including,
`(cid:147)Android, G Suite, Google Play, people operations, finance, engineering, and marketing.(cid:148) Id. at ¶ 7.
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`6
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`

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`ARGUMENT
`
`I.
`
`The Applicable Legal Standards for Transfer of Venue
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`(cid:147)For the convenience of parties and witnesses, in the interest of justice, a district court
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`may transfer any civil action to any other district or division where it might have been brought.(cid:148)
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`28 U.S.C. § 1404(a). (cid:147)The movant bears the burden to clearly demonstrate that a transfer is
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`(cid:145)clearly more convenient(cid:146) than the venue chosen by the plaintiff.(cid:148) Mears Techs., Inc. v. Finisar
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`Corp., No. 2:13-cv-376-JRG, 2014 WL 1652603, at *2 (E.D. Tex. April 24, 2014). The
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`defendant must do more than show that transferee district is a clearly more convenient venue for
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`it to defend against the plaintiff(cid:146)s claims; it must show that the transferee district would be (cid:147)more
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`convenient for both parties involved, non-party witnesses, expert witnesses, and in the interest of
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`justice.(cid:148) Aloft Media, LLC v. Adobe Sys., No. 6:07(cid:150)CV(cid:150)355, 2008 WL 819956, at *3 (E.D. Tex.
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`Mar. 25, 2008) (emphasis added); 15 Wright, Miller & Cooper, Fed. Practice and Proc. § 3849
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`(3d ed. 2009) ((cid:147)[S]ection 1404(a) refers to all of the parties to the action, which means that their
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`frequently competing conveniences must be taken into account by the court. Therefore, transfer
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`will be refused on account of this factor if the effect of a change of venue would be merely to
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`shift the inconvenience from one party to the other.(cid:148)). If the defendant fails to make this
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`showing, (cid:147)the plaintiff(cid:146)s choice [of venue] must be respected.(cid:148) In re Volkswagen of Am., Inc.,
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`545 F.3d 304, 315 (5th Cir. 2008) (en banc) (Volkswagen II); see also Gulf Oil Corp. v. Gilbert,
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`330 U.S. 501, 508 (1947).
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`In conducting its analysis, the court first determines whether the suit could have been
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`brought in the proposed transferee district. See In re Volkswagen AG, 371 F.3d 201, 203 (5th
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`Cir. 2004) (Volkswagen I). If the court answers that question affirmatively, it then evaluates
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`certain private and public interest factors. Id. The private-interest factors include: (1) (cid:147)the
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`relative ease of access to sources of proof;(cid:148) (2) (cid:147)the availability of compulsory process to secure
`
`7
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`the attendance of witnesses;(cid:148) (3) (cid:147)the cost of attendance for willing witnesses;(cid:148) and (4) (cid:147)all other
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`practical problems that make a trial case easy, expeditious, and inexpensive.(cid:148) Id. The public-
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`interest factors include (1) (cid:147)the administrative difficulties flowing from court congestion;(cid:148)
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`(2) (cid:147)the local interest in having localized interests decided at home;(cid:148) (3) (cid:147)the familiarity of the
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`forum with the law that will govern the case;(cid:148) and (4) (cid:147)the avoidance of unnecessary problems of
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`conflicts of laws.(cid:148) Id. Plaintiff(cid:146)s choice of venue is also a relevant consideration. In re
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`Horseshoe Entm(cid:146)t, 337 F.3d 429, 434 (5th Cir. 2003). Although not an enumerated factor,
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`(cid:147)[c]onsideration of the interest of justice, which includes judicial economy, (cid:145)may be
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`determinative to a particular transfer motion, even if the convenience of the parties and witnesses
`
`might call for a different result.(cid:146)(cid:148) Regents of Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559,
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`1565 (Fed. Cir. 1997) (citation omitted). Although this suit could have been brought against
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`Huawei in the proposed transferee district, Huawei has failed to demonstrate that the transferee
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`venue is clearly more convenient.
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`II.
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`The Private Interest Factors All Weigh Against Transfer
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`A.
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`Ease of Access to Sources of Proof Weighs Against Transfer
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`Huawei relies primarily on its contention that as a (cid:147)downstream retailer,(cid:148) it is only
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`"peripherally involved in the case" and argues that the majority of relevant evidence is likely to
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`come from Google, which created the accused infringing products as part of its Android
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`platform. Motion at 10. For this, Huawei cites Beijing Zhongyi Zhongbiao Elec. Info. Tech. v.
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`Microsoft Corp., No. 4:12-CV-4077, 2013 WL 3808009, at *4 (W.D. Ark. July 22, 2013).
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`Beijing Zhongyi Zhongbiao Elec. Info. Tech suggests that transfer may be allowed where an
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`additional defendant with no real connection to the case except for being downstream of the real
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`defendant in the distribution chain is brought in for the manifest purpose of maintaining venue
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`where the plaintiff itself has no genuine ties. This is not the case here, where Huawei -- one of
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`the largest smart phone and tablet manufacturers and distributers in the world -- is accused of
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`developing the accused functionality, as well as selling and distributing large numbers of
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`Accused Products. Huawei’s presence in the case is not some contrivance designed to place
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`venue in this District. Moreover, as demonstrated above, unlike the plaintiff in Beijing Zhongyi
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`Zhongbiao Elec. Info. Tech, AGIS has real and substantial connections to this District.
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`Huawei has no basis to contend that the main source of evidence relating to the accused
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`products is Google. Although AGIS has accused functionality related to Google(cid:146)s Android
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`Operating System, AGIS(cid:146)s infringement contentions, which did not invoke Local Patent Rule 3-
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`1(g), rely only on publically available open source code or public APIs.5 Because of this, the
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`vast majority of relevant evidence will come from Huawei, not Google. Huawei also ignores the
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`fact that Google maintains a significant presence in Texas. Even if Google possesses relevant
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`evidence regarding the apps at issue, Huawei has not set forth any reason as to why this
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`information will not be electronically accessible from any location, including proprietary source
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`code which should be accessible in digital form regardless of where it is stored. 6 As this Court
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`has recognized, this does not support transfer. Network-1 Sec. Sols., Inc. v. D-Link Corp., 433 F.
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`Supp. 2d 795, 799 (E.D. Tex. 2006). Google’s possible role as a non-party in this case -- which
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`is disputed by AGIS -- should not be the determining factor to transfer venue of a case involving
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`two Texas and two Chinese entities.
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`Huawei admits that the documents and witnesses with information relevant to its design
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`and manufacture of the Accused Products is not in California or Texas but in China. The
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`Northern District of California is not appreciably closer to those sources of proof than the
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`5 In contrast to AGIS(cid:146)s parallel action against Apple, AGIS has chosen not to pursue claims related to
`methods performed by a server against Huawei.
`6 Googles Austin office includes (cid:147)Android, G Suite, Google Play, people operations, finance, engineering,
`and marketing.(cid:148) Rubino Decl. at 7.
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`Eastern District of Texas. Huawei acknowledges that additional documents relating to research,
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`development and testing of accused devices takes place in its U.S. facilities in Santa Clara and
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`Mountain View California. Wang Decl. at ¶5. Huawei also contends that (cid:147)none of its Plano-
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`based employees are involved in research and development or sales and marketing of the
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`Accused Devices(cid:148) (Motion, at 4). This is difficult to believe because job postings for its Plano
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`location specifically seek staff engineers to conduct research and development in Plano. See
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`Rubino Decl., at ¶ 14.
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`AGIS(cid:146)s proof will come from records maintained in the offices of its related companies
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`in Jupiter, Florida; Lenexa Kansas; Austin, Texas; and in Allen, Texas in the office of its
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`consultant Eric Armstrong. Beyer Decl., at ¶¶ 10, 15, 17, 19, and 20. AGIS also intends to
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`obtain evidence relevant to damages, such as the consumer market value of the features enabled
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`by the Patents-in-Suit, consumer surveys and marketing information regarding demand for
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`particular applications and features from third-party cellular carriers, including AT&T, Sprint,
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`and Verizon. Rubino Decl., at ¶ 9. AT&T(cid:146)s headquarters is in Dallas; Sprint(cid:146)s headquarters is in
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`Overland, Kansas; and Verizon(cid:146)s headquarters is in New York, each substantially closer and
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`more convenient to this District than to the Northern District of California. Id. at ¶ 9. AGIS has
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`no sources of proof in the proposed transferee district. Given the abundant proof in or closer to
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`this District, this factor weighs against transfer.
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`B.
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`This District is More Convenient for Willing Witnesses
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`The cost of attendance for relevant willing witnesses also weighs strongly against
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`transfer. See Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., 867 F. Supp. 2d 859, 870 (E. D.
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`Tex. 2012) ((cid:147)In considering the availability and convenience of witnesses, a court must
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`concentrate primarily upon the availability and convenience of key witnesses.(cid:148)) (emphasis
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`added). (cid:148)[I]t is the convenience of non-party witnesses, rather than of party witnesses, that is
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`more important and accorded greater weight in transfer of venue analysis.(cid:148) Id. at 870-71
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`(emphasis added) (citing Shoemake v. Union Pacific R.R. Co., 233 F. Supp. 2d 828, 832 (E.D.
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`Tex. 2002)). AGIS(cid:146)s key party witnesses will include Mr. Beyer (Jupiter, Florida), Mr. Sietsema
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`(Austin, Texas), and Sandel Blackwell (Lenexa, Kansas). The Eastern District of Texas is a
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`more convenient venue for each of them. Unlike Huawei, AGIS is a small business, and AGIS(cid:146)s
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`party witnesses(cid:146) absence will create severe hardship for AGIS(cid:146)s ability to do business, while
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`Huawei would likely experience no impact if its witnesses were required to travel to Texas to
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`testify. See Rossco Holdings Inc. v. Best W. Int’l Inc., No. H-06-0155, 2006 WL 1007474, at *3
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`(S.D. Tex. Apr. 18, 2006) (denying transfer due in part to potential hardship to plaintiff as a
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`small business ); see also AGCS Marine Ins. Co. v. Associated Gas & Oil Co., 775 F. Sup