Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 1 of 20 PageID #: 406
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT, LLC
`
`
`
`Plaintiff,
`
`v.
`
`HUAWEI DEVICE USA INC., HUAWEI
`DEVICE CO., LTD. AND HUAWEI DEVICE
`(DONGGUAN) CO., LTD.
`
`Defendants.
`
`CIVIL ACTION NO. 2:17-cv-513-JRG
`
`
`JURY TRIAL DEMANDED
`
`
`
`DEFENDANTS HUAWEI DEVICE USA INC., HUAWEI DEVICE CO., LTD. AND
`HUAWEI DEVICE (DONGGUAN) CO., LTD.’S MOTION TO
`TRANSFER VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA
`
`
`
`
`

`

`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 2 of 20 PageID #: 407
`
`
`
`TABLE OF CONTENTS
`
`I.
`
`INTRODUCTION ................................................................................................................... 1
`
`II. FACTUAL AND PROCEDURAL BACKGROUND ............................................................ 2
`
`A.
`
`B.
`
`Procedural Status .................................................................................................... 2
`
`The Parties, Their Locations, Potential Witnesses, and Evidence .......................... 3
`
`Page
`
`1.
`
`2.
`
`3.
`
`AGIS Has No Ties To E.D. Tex. ................................................................ 3
`
`The Huawei Defendants Have Relevant Ties To N.D. Cal. ....................... 4
`
`Relevant and Material Third Parties Are Located In Or Closer To N.D.
`Cal. .............................................................................................................. 5
`
`III. LEGAL STANDARD ............................................................................................................. 7
`
`IV. ARGUMENT........................................................................................................................... 8
`
`A.
`
`B.
`
`C.
`
`AGIS Could Have Brought Suit In The Northern District Of California ............... 8
`
`The Court Should Not Give Deference To AGIS’s Choice of Venue .................... 9
`
`All Private Interest Factors Weigh In Favor of Transfer ...................................... 10
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`The Relative Ease of Access To Sources of Proof Factor Favors N.D. Cal.
`................................................................................................................... 10
`
`The Availability of Compulsory Process To Secure the Attendance of
`Witnesses Factor Strongly Favors N.D. Cal. ............................................ 11
`
`The Convenience For Witnesses Factor Favors N.D. Cal. ....................... 12
`
`The Local Interests Factor Favors Transfer To N.D. Cal. ........................ 13
`
`All Remaining Factors Are Neutral .......................................................... 14
`
`V. CONCLUSION ..................................................................................................................... 14
`
`
`
`
`
`
`i
`
`

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`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 3 of 20 PageID #: 408
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`In re Acer Am. Corp.,
`626 F.3d 1252 (Fed. Cir. 2010)................................................................................................11
`
`In re Apple, Inc.,
`374 F. App’x 997 (Fed. Cir. 2010) ..........................................................................................14
`
`In re Apple, Inc.,
`581 F. App’x 886 (Fed. Cir. 2014) ..........................................................................................12
`
`Beijing Zhongyi Zhongbiao Elec. Info. Tech. v. Microsoft Corp.,
`No. 4:12-cv-4077, 2013 WL 3808009 (W.D. Ark. July 22, 2013) ......................................9, 10
`
`Droplets, Inc. v. Amazon.com, Inc.,
`No. 11-cv-392, 2012 WL 3578605 (E.D. Tex. June 27, 2012) ...............................................12
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)........................................................................................7, 9, 12
`
`Global Equity Management (SA) Pty. Ltd. v. Alibaba.com, Inc.,
`No. 2:15-cv-01702-RWS-RSP (E.D. Tex. Mar. 24, 2017), ECF No. 73.................................13
`
`Godo Kaisha IP Bridge 1 v. Xilinx, Inc.,
`No. 2:17-cv-00100-JRG-RSP, 2017 WL 4076052 (E.D. Tex. Sept. 14, 2017) ...................8, 11
`
`Gonzalez v. Social Concepts, Inc.,
`No. 2:14-cv-650-JRG-RSP (E.D. Tex. Mar. 24, 2015), ECF No. 12 ......................................12
`
`In re Hoffmann-LaRoche, Inc.,
`587 F.3d 1333 (Fed. Cir. 2009)....................................................................................10, 11, 13
`
`In re Horseshoe Ent’mt,
`337 F.3d 429 (5th Cir. 2003) .....................................................................................................8
`
`J. McIntyre Mach., Ltd. v. Nicastro,
`131 S. Ct. 2780 (2011) ...............................................................................................................8
`
`In re Microsoft Corp.,
`630 F.3d 1361 (Fed. Cir. 2011)..................................................................................................9
`
`In re Nintendo Co., Ltd.,
`589 F.3d 1194 (Fed. Cir. 2009)..................................................................................................9
`
`ii
`
`

`

`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 4 of 20 PageID #: 409
`
`Optimum Power Solutions LLC v. Apple, Inc.,
`794 F. Supp. 2d 696 (E.D. Tex. 2011) .....................................................................................10
`
`Porto Tech. Co., Ltd. v. Samsung Elec. Am., Inc. et al.,
`Case No. 15-cv-00456-JRG-RSP, 2:15-cv-00458-JRG-RSP, 2:15-cv-00459-
`JRG-RSP, 2:15-cv-00460-JRG-RSP, 2016 WL 937388 (E.D. Tex. Mar. 11,
`2016) ........................................................................................................................................13
`
`Regent Markets Grp., Ltd. v. IG Markets, Inc.,
`No. 2:10-cv-42-TJW, 2011 WL 1135123 (E.D. Tex. Mar. 25, 2011) .....................................11
`
`Software Rights Archive, LLC v. Google, Inc.,
`No. 2:07-cv-511, 2010 WL 2950351 (E.D. Tex. July 22, 2010) .............................................13
`
`In re TS Tech USA Corp.,
`551 F.3d 1315 (Fed. Cir. 2008)........................................................................................7, 9, 12
`
`In re Volkswagon AG (Volkswagon I),
`371 F.3d 201 (5th Cir. 2004) .................................................................................................7, 8
`
`In re Volkswagon of Am., Inc. (Volkswagon II),
`545 F.3d 304 (5th Cir. 2008) (en banc) ...............................................................................8, 12
`
`In re Zimmer Holdings, Inc.,
`609 F.3d 1378 (Fed. Cir. 2010)................................................................................................14
`
`Zitovault, LLC v. Amazon.com, Inc.,
`No. 6:15-cv-152-JRG, 2015 WL 11089482 (E.D. Tex. Dec. 4, 2015) ....................................10
`
`Statutes
`
`28 U.S.C. § 1391(c) .........................................................................................................................8
`
`28 U.S.C. § 1400(b) .........................................................................................................................8
`
`28 U.S.C. § 1404(a) ...........................................................................................................1, 7, 8, 12
`
`Other Authorities
`
`Fed. R. Civ. Proc. 45(c)(1)(B) .......................................................................................................11
`
`
`
`
`iii
`
`

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`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 5 of 20 PageID #: 410
`
`
`
`
`Defendants Huawei Device USA Inc. (“Huawei USA”), Huawei Device Co., Ltd.
`
`(“Huawai Device”), and Huawei Device (Dongguan) Co., Ltd. (“Huawei Dongguan”)
`
`(collectively, the “Huawei Defendants”) respectfully move this Court pursuant to 28 U.S.C.
`
`§ 1404(a) to transfer this action to the Northern District of California (“N.D. Cal.”).
`
`I.
`
`INTRODUCTION
`
`This action has no meaningful connection to the Eastern District of Texas (“E.D. Tex.”).
`
`Plaintiff AGIS Software Development, LLC (“AGIS”) contends that the Huawei Defendants
`
`infringe four related U.S. patents (collectively, the “Patents-in-Suit”) based on the inclusion of
`
`“Google Maps, Android Device Manager, Find My Phone, Find My Device, Google Messages,
`
`Android Messenger, Google Hangouts, Google Plus, and Google Latitude” (the “Accused
`
`Applications”) on certain Android devices1 purportedly sold by the Huawei Defendants. (FAC,
`
`¶ 17). The vast majority of these applications were created and provided by third parties –
`
`including Google LLC (“Google”) – all headquartered in N.D. Cal. And, in particular, Google’s
`
`documents and witnesses relevant to the design, development and installation of Google’s
`
`applications are primarily located in N.D. Cal., and not in E.D. Tex.
`
`The Huawei Defendants have no relevant connection to E.D. Tex. with respect to the
`
`Accused Devices and/or the Accused Applications. Huawei Device and Huawei Dongguan
`
`design and manufacture the Accused Devices, including any installation of Google software on
`
`those devices, outside of the United States, and they have no presence whatsoever in E.D. Tex.
`
`Although Huawei USA is incorporated in Texas, the Huawei USA employees involved in the
`
`
`1 The First Amended Complaint (“FAC”) alleges that the following specific Huawei devices are
`at issue: The Union, Mate 9, Nexus 6P, GX8, and P8lite devices (collectively, the “Accused
`Devices”). (D.I. 20 (“FAC”), ¶ 17).
`
`
`
`

`

`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 6 of 20 PageID #: 411
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`design and development of the Accused Devices, or the pre-delivery integration of third-party
`
`applications into those products, are mostly located in California. None are located in E.D. Tex.
`
`and the Huawei Defendants do not maintain any documents regarding the Accused Devices in
`
`E.D. Tex.
`
`AGIS has no substantive connections to E.D. Tex. It was formed less than three weeks
`
`before institution of this litigation, and it acquired the Patents-in-Suit just one day prior to filing
`
`this action. Its “presence” in Texas, as reflected in its corporate filings with the State of Texas,
`
`appears to be that of its agent for service of process in Austin, Texas – outside of this district.
`
`There is no record of AGIS’s purported principal place of business in Marshall, Texas as alleged
`
`in the FAC, or of any business activities within Texas. Moreover, none of the inventors or prior
`
`owners of the Patents-in-Suit, the prosecuting attorney of the Patents-in-Suit, the managing
`
`member of AGIS or the individual principals of that entity live or work in this District.
`
`These facts, and the fact that that N.D. Cal. has a strong localized interest in this dispute,
`
`clearly militate in favor of N.D. Cal. as the more convenient forum. The Court should thus
`
`transfer this case there.
`
`II.
`
`FACTUAL AND PROCEDURAL BACKGROUND
`
`A.
`
`Procedural Status
`
`AGIS filed its initial complaint on June 21, 2017, and a First Amended Complaint against
`
`the Huawei Defendants on August 17, 2017. AGIS alleges that the Huawei Defendants infringe
`
`one or more claims of the Patents-in-Suit because the Accused Devices are pre-configured with
`
`the Accused Applications. (FAC, ¶ 17). In simplified terms, AGIS alleges that the Accused
`
`Devices include functionality from third parties that “allows users to form groups with other
`
`2
`
`

`

`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 7 of 20 PageID #: 412
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`users such that users may view each others’ locations on a map and engage in communication.”
`
`(Id.).
`
`While the Court has set a scheduling conference for November 28, 2017 (D.I. 33), the
`
`Court has not entered a docket control order and discovery has not begun.
`
`B.
`
`The Parties, Their Locations, Potential Witnesses, and Evidence
`
`1.
`
`AGIS Has No Ties To E.D. Tex.
`
`AGIS asserts that it is a Texas company with its principal place of business at 100 W.
`
`Houston Street, Marshall, TX 75670. (FAC, ¶ 1). But, outside this assertion, there is no record
`
`of AGIS at that location. (Blackburn Decl.2, ¶ 11 & Ex. 10). By contrast, according to Texas’s
`
`Secretary of State and Office of the Comptroller, AGIS’s address is 211 E. 7th Street, Suite 620,
`
`Austin, Texas 78701, which is the address of AGIS’s agent for service of process. (Id., ¶¶ 8-9 &
`
`Exs. 7-8). AGIS’s Certificate of Formation identifies one corporate member, AGIS Holdings
`
`Inc. (“AGIS Holdings”), a Florida corporation located at 92 Lighthouse Drive, Jupiter, Florida.
`
`(Id., ¶¶ 6-7 & Exs. 5-6). The directors and officers of AGIS Holdings all reside in Florida. (Id.,
`
`¶ 10 & Ex. 9).
`
`AGIS was formed on June 1, 2017, less than three weeks prior to the commencement of
`
`this action. (Id., ¶ 6 & Ex. 5). AGIS has no known employees in Texas, and it conducts no
`
`business in Texas. (Id., ¶ 12). Counsel for Huawei has been unable to locate any evidence of
`
`AGIS’s business activities or any reference to AGIS (other than its address and references to its
`
`litigation activities) as of October 31, 2017. (Id.). The Patents-in-Suit themselves were only
`
`assigned to AGIS one day before this suit was filed. (Id., ¶¶ 2-5 & Exs. 1-4).
`
`
`2 “Blackburn Decl.” refers to the declaration of James Blackburn, filed herewith.
`
`3
`
`

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`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 8 of 20 PageID #: 413
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`AGIS alleges that it licenses the Patents-in-Suit to Advanced Ground Information
`
`Systems, Inc. (“AGIS, Inc.”), founded by Malcolm Beyer, Jr., a named inventor on each of the
`
`Patents-in-Suit. (FAC, ¶¶ 12, 14). Both AGIS, Inc. and Mr. Beyer are located at the same
`
`address in Jupiter, Florida as AGIS Holdings. (Blackburn Decl., ¶¶ 10, 13 & Exs. 9, 11).
`
`2.
`
`The Huawei Defendants Have Relevant Ties To N.D. Cal.
`
`Huawei Device and Huawei Dongguan are both Chinese corporations. (Liu Decl.3,
`
`¶¶ 3-4). Huawei Device and Huawei Dongguan design and manufacture the Accused Devices,
`
`including any pre-loaded installation of Google software on those devices, outside of the United
`
`States. (Id., ¶¶ 5, 8). Huawei Device and Huawei Dongguan do not have any facilities or
`
`employees in Texas, and they do not maintain any documents in Texas. (Id., ¶¶ 3-4, 11).
`
`Huawei Device and Huawei Dongguan’s employees who design and manufacture
`
`Huawei’s smartphones and tablets reside in China. (Id., ¶ 9). Huawei Device and Huawei
`
`Dongguan have identified Cui Qingyu, an engineer, and Gui Zhuomin, a software engineer, as
`
`potential witnesses among its employees in China. (Id.). The cost of attendance for Huawei
`
`Device and Huawei Dongguan’s witnesses would be significantly lower if the case were
`
`transferred to N.D. Cal., as that forum is geographically closer to, and logistically more
`
`convenient to travel to and from, China. (Blackburn Decl., ¶ 24, Exs. 31-32).
`
`Huawei USA is a Texas corporation with its principal place of business in Plano, Texas.
`
`(Wang Decl.4, ¶ 3). However, none of its Plano-based employees are involved in research and
`
`development, or sales and marketing of the Accused Devices. (Id., ¶ 9). Instead, the Plano
`
`
`3 “Liu Decl.” refers to the declaration of Zhu Liu, filed herewith.
`
`4 “Wang Decl.” refers to the declaration of Yao Wang, filed herewith.
`
`4
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`

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`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 9 of 20 PageID #: 414
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`facility primarily handles corporate-level functions that are not product or technology specific.
`
`(Id.).
`
`Huawei USA’s research and development, testing, and sales and marketing efforts for the
`
`Accused Devices, including any related to, e.g., the Google software installed on those devices,
`
`occurs primarily within California. In particular, the research, development, and testing for the
`
`Accused Devices is done in Huawei USA’s Santa Clara, Mountain View, and San Diego
`
`facilities in California. (Id., ¶¶ 5-7). Huawei USA has identified Wen Wen, who has knowledge
`
`of sales and marketing efforts for the Accused Devices and is employed at the Bellevue facility,
`
`which is closer to N.D. Cal. than to E.D. Texas. (Id., ¶ 8). None of Huawei USA’s employees
`
`who are most knowledgeable about the design, development, and testing of the Accused Devices
`
`reside in E.D. Texas; rather they are in California. (Id., ¶¶ 5-7, 9).
`
`3.
`
`Relevant and Material Third Parties Are Located In Or Closer
`To N.D. Cal.
`
`The most critical evidence for key issues in this case is outside this District and primarily
`
`in N.D. Cal. The Accused Applications are all developed by third parties located in and around
`
`N.D. Cal. For example, AGIS relies upon functionality in the Google Maps application and the
`
`Find My Device application as the underlying factual basis for its allegations that the Huawei
`
`Defendants infringe the Patents-in-Suit. (See FAC, ¶¶ 17, 22-23, 31-36, 44-49, 57-61). Third-
`
`party Google provides these two applications to the Huawei Defendants. (Oplinger Decl.5, ¶¶ 1-
`
`3; Luh Decl.6, ¶¶ 1-3). The FAC also lists several other applications for which Google is
`
`
`5 “Oplinger Decl.” refers to the third-party declaration of Andrew Oplinger, filed herewith.
`
`6 “Luh Decl.” refers to the third-party declaration of William Luh, filed herewith.
`
`5
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`

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`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 10 of 20 PageID #: 415
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`responsible, including Messenger, Android Messages, Google Hangouts, and Google Plus.7
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`(FAC, ¶ 17; Dubey Decl.8, ¶¶ 2, 5-8). Thus, Google’s knowledge and documents will be
`
`essential to showing how these applications function.
`
`Furthermore, Google has no relevant ties to this district. Google’s Mountain View office
`
`is the strategic center of its business, where the most significant management and engineering
`
`decisions for the Google applications at issue occur. (Dubey Decl., ¶¶ 4-5; Oplinger Decl., ¶¶ 2,
`
`5; Luh Decl., ¶¶ 2, 5). In fact, every Google application identified in the FAC is designed,
`
`developed and/or maintained in or around N.D. Cal., or logistically closer to N.D. Cal. than to
`
`E.D. Texas. (Oplinger Decl., ¶¶ 2-6; Luh Decl., ¶¶ 2-6; Dubey Decl., ¶¶ 4-9). Nearly all the
`
`documents, including highly proprietary source code, related to those Google applications are
`
`either physically present in N.D. Cal. or electronically accessible from Mountain View, as is the
`
`persons most qualified to identify and locate those documents. (Oplinger Decl., ¶ 6; Luh Decl., ¶
`
`6; Dubey Decl., ¶ 10). Google has no offices in this district, and it does not design, maintain, or
`
`manage any of the accused applications in this district. (Oplinger Decl., ¶ 5 ; Luh Decl., ¶ 5;
`
`Dubey Decl., ¶ 9).
`
`The FAC also accuses a non-Google application: “Find My Phone.” (FAC, ¶ 17). And,
`
`that too is offered by a third party, i.e., Family Safety Production / Life360, Inc. (“Life360”),
`
`located in N.D. Cal. (Blackburn Decl., ¶¶ 20-23 & Exs. 26-30 (identifying a principal place of
`
`
`7 “Android Device Manager,” which is also identified in the FAC, was rebranded to the Find My
`Device application. (Luh Decl., ¶ 1). Moreover, while the FAC identifies “Google Messages”
`and “Android Messenger” as accused applications, there are no Google products branded with
`those names. Rather, Google provides an application called “Android Messages,” which was
`formerly known as “Messenger.” (Dubey Decl., ¶ 2). Finally, “Google Latitude,” which is also
`identified in the FAC, no longer exists and is not included in any of the Accused Devices.
`(D.I. 29, ¶ 17).
`
`8 “Dubey Decl.” refers to the third-party declaration of Abeer Dubey, filed herewith.
`
`6
`
`

`

`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 11 of 20 PageID #: 416
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`business in San Francisco, California)). AGIS is well aware of the location of at least Life360 as
`
`its predecessor, AGIS, Inc., previously litigated against Life360 in a case pending in N.D. Cal.
`
`(Id., ¶¶ 22-23 & Exs. 29-30).
`
`Moreover, numerous other third-party witnesses reside in N.D. Cal., or in locations more
`
`convenient to N.D. Cal. than to E.D. Tex.:
`
`● Christopher Rice is a named co-inventor on the ’251 and ’838 Patents and, on
`
`information and belief, resides in Redmond, Washington. (Blackburn Decl., ¶ 14 &
`
`Exs. 12-13). Redmond is logistically more convenient to N.D. Cal. than to E.D. Tex.
`
`● Daniel J. Burns was the prosecuting attorney for at least three of the four Patents-in-
`
`Suit (i.e., the ’055, ’838, and ’251 Patents) and resides in Santa Clara, CA, within
`
`N.D. Cal. (Id., ¶ 15 & Exs. 14, 38-40).
`
`● Most of the inventors of prior art references that appear related to the Patents-In-Suit,
`
`e.g., U.S. Patent No. 8,798,593, U.S. Patent No. 7,091,852, U.S. Publication No.
`
`2004/0054428, and U.S. Patent No. 7,143,130, reside in N.D. Cal. or elsewhere in
`
`California. On information and belief, none of the inventors of these prior art
`
`references reside in Texas. (Id., ¶¶ 16-19 & Exs. 15-25).
`
`III. LEGAL STANDARD
`
`“For the convenience of parties and witnesses, in the interest of justice, a district court
`
`may transfer any civil action to any other district or division where it might have been
`
`brought…” 28 U.S.C. § 1404(a). In patent cases, the laws of the regional circuit in which the
`
`case was originally brought governs the transfer analysis. In re Genentech, Inc., 566 F.3d 1338,
`
`1341-42 (Fed. Cir. 2009); In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008).
`
`7
`
`

`

`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 12 of 20 PageID #: 417
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`The Fifth Circuit applies a two-part test when determining whether transfer is
`
`appropriate. First, the movant(s) must show that the case could have been brought in the
`
`proposed transferee district. In re Volkswagon AG (Volkswagon I), 371 F.3d 201, 203 (5th Cir.
`
`2004). If so, the court then weighs the relative convenience of the transferee district and the
`
`original district, based on a number of private and public interest factors. Id. The private factors
`
`are: “(1) the relative ease of access to sources of proof; (2) the availability of compulsory process
`
`to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all
`
`other practical problems that make trial of a case easy, expeditious, and inexpensive.” In re
`
`Volkswagon of Am., Inc. (Volkswagon II), 545 F.3d 304, 315 (5th Cir. 2008) (en banc) (citations
`
`omitted). The public interest factors are: “(1) the administrative difficulties flowing from court
`
`congestion; (2) the local interest in having localized interest decided at home; (3) the familiarity
`
`of the forum with the law that will govern the case; and (4) the avoidance of unnecessary
`
`problems of conflicts of laws [or in] the application of foreign law.” Id. at 315 (citations
`
`omitted). In addition, this court recognizes that the location of third parties is a “particularly
`
`compelling” consideration. See Godo Kaisha IP Bridge 1 v. Xilinx, Inc., No. 2:17-cv-00100-
`
`JRG-RSP, 2017 WL 4076052, at *3 (E.D. Tex. Sept. 14, 2017) (transferring to N.D. Cal. in part
`
`because the court expected third-party witnesses to play a substantial role in the case)
`
`(hereinafter “Godo Kaisha v. Xilinx”).
`
`Here, no factors favor E.D. Tex. as a forum, while many favor N.D. Cal.
`
`IV. ARGUMENT
`
`A.
`
`AGIS Could Have Brought Suit In The Northern District Of California
`
`As a threshold matter, Section 1404(a) requires that the action could have been filed in
`
`the proposed transferee district. Volkswagon I, 371 F.3d at 203; In re Horseshoe Ent’mt, 337
`
`8
`
`

`

`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 13 of 20 PageID #: 418
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`F.3d 429, 433 (5th Cir. 2003). Venue is proper in any jurisdiction that has personal jurisdiction
`
`over the defendant. See 28 U.S.C. § 1400(b); 28 U.S.C. § 1391(c)(2). Huawei USA is registered
`
`to do business in the State of California, has business operations in Santa Clara within N.D. Cal.,
`
`and therefore is subject to jurisdiction in that district. See J. McIntyre Mach., Ltd. v. Nicastro,
`
`131 S. Ct. 2780, 2787 (2011). With respect to foreign defendants Huawei Device and Huawei
`
`Dongguan, venue is appropriate in N.D. Cal. See 28 U.S.C. § 1391(c)(3). Furthermore, based
`
`on AGIS’ complaint, jurisdiction over the Huawei Device and Huawei Dongguan can be
`
`exercised in N.D. Cal. (FAC, ¶ 6 (alleging that Defendants have committed acts of infringement
`
`“in the United States”).)
`
`B.
`
`The Court Should Not Give Deference To AGIS’s Choice of Venue
`
`As the Federal Circuit has explained, the Fifth Circuit does not give any special weight to
`
`the plaintiff’s choice of venue. See In re Nintendo Co., Ltd., 589 F.3d 1194, 1200 (Fed. Cir.
`
`2009). Rather, the plaintiff’s choice of venue is addressed within the multi-factor test that
`
`weighs the convenience of the transferor and transferee venues. See TS Tech., 551 F.3d at 1320.
`
`AGIS’s only connection to E.D. Tex. is ephemeral and was undoubtedly “made in
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`anticipation of litigation and for the likely purpose of making that forum appear convenient.”
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`See In re Microsoft Corp., 630 F.3d 1361, 1364-65 (Fed. Cir. 2011) (“The only added wrinkle is
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`that [the plaintiff] took the extra step of incorporating under the laws of Texas sixteen days
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`before filing suit. But that effort is no more meaningful, and no less in anticipation of litigation,
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`than the other ones we reject.”). Therefore, any argument that AGIS’s litigation-based
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`connections to this District justify deference to its choice of venue “rests on a fallacious
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`assumption.” Id. at 1364.
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`9
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`

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`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 14 of 20 PageID #: 419
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`C.
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`All Private Interest Factors Weigh In Favor of Transfer
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`1.
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`The Relative Ease of Access To Sources of Proof Factor Favors
`N.D. Cal.
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`The location of the majority of evidence in and near N.D. Cal. weighs in favor of transfer.
`
`In patent cases, “the bulk of the relevant evidence usually comes from the accused infringer…”
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`In re Genentech, 566 F.3d at 1345. However, where the accused infringer is a downstream
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`retailer of the alleged infringing products, courts have found that the downstream retailer is “only
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`peripherally involved in the case.” Beijing Zhongyi Zhongbiao Elec. Info. Tech. v. Microsoft
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`Corp., No. 4:12-cv-4077, 2013 WL 3808009, at *4 (W.D. Ark. July 22, 2013). In such cases,
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`courts have recognized that evidence likely will not come from the location of the retailer and
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`therefore transferred the case to the location of the manufacturer. Id. at *4-6; see also Zitovault,
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`LLC v. Amazon.com, Inc., No. 6:15-cv-152-JRG, 2015 WL 11089482, at *2 (E.D. Tex. Dec. 4,
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`2015) (granting motion to transfer the case from E.D. Tex., where Amazon’s customer was
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`located, to the Western District of Washington, where Amazon was located) (hereinafter
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`“Zitovault v. Amazon.com”); Amazon’s Motion, Zitovault v. Amazon.com, ECF No. 29.
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`This factor favors transfer because, as detailed in Sections II.B.2 and II.B.3, relevant
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`documents, including highly proprietary source code, and witnesses with knowledge relating to
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`the development, manufacturing, and management of the Accused Devices and the third-party
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`Accused Applications are located in N.D. Cal. or at locations far more convenient to N.D. Cal.
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`than to E.D. Tex.
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`The Huawei Defendants are not aware of any witnesses or documents in E.D. Tex. (Liu
`
`Decl., ¶¶ 10-11; Wang Decl., ¶¶ 9-10). Moreover, given AGIS’s recent creation, whatever
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`documents AGIS may now have in E.D. Tex. must have been transferred or created in
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`anticipation of litigation, and, therefore, are not considered to be local documents for purposes of
`
`10
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`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 15 of 20 PageID #: 420
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`a transfer analysis. In re Hoffmann-LaRoche, Inc., 587 F.3d 1333, 1336-37 (Fed. Cir. 2009); see
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`also Optimum Power Solutions LLC v. Apple, Inc., 794 F. Supp. 2d 696, 701 (E.D. Tex. 2011)
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`(noting that documents transferred to a venue in anticipation of litigation should not be
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`considered).
`
`2.
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`The Availability of Compulsory Process To Secure the Attendance of
`Witnesses Factor Strongly Favors N.D. Cal.
`
`“The venue’s ability to compel testimony through subpoena power is … an important
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`factor.” In re Acer Am. Corp., 626 F.3d 1252, 1255 (Fed. Cir. 2010). This factor favors transfer
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`when a transferee venue, like N.D. Cal. here, has subpoena power over third-party witnesses for
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`both depositions and trial (termed “absolute subpoena power”). Hoffman-La Roche, 587 F.3d at
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`1338; Fed. R. Civ. Proc. 45(c)(1)(B) (supporting that a subpoena issued by the Northern District
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`may compel any witness within the State of California to attend a trial of this matter). The
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`availability of compulsory process “will weigh more heavily in favor of transfer when more non-
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`party witnesses reside within the transferee venue.” Regent Markets Grp., Ltd. v. IG Markets,
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`Inc., No. 2:10-cv-42-TJW, 2011 WL 1135123, at *3 (E.D. Tex. Mar. 25, 2011).
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`Here, there are no known third-party witnesses located within the subpoena power of
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`E.D. Tex.9 On the other hand, many non-party witnesses who likely possess relevant
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`information are located in N.D. Cal. and subject to that court’s subpoena power. For example,
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`the accused “Find My Phone” application is made by Family Safety Production / Life360 Inc.,
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`which is headquartered in San Francisco, California (Blackburn Decl., ¶¶ 20-23 & Exs. 26-30);
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`the prosecuting attorney for three of the Patents-in-Suit resides in Santa Clara, California (Id.,
`
`
`9 AGIS itself has no known affiliates or employees within this district. In fact, the primary
`inventor and owner of AGIS are Florida residents.
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`11
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`

`

`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 16 of 20 PageID #: 421
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`¶ 15, Exs. 14, 38-40); and potential prior art witnesses are located throughout California (Id.,
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`¶¶ 16-19 & Exs. 15-25). Because N.D. Cal. has subpoena power over such vital third parties, the
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`availability of such power favors transfer. See Godo Kaisha, 2017 WL 4076052 at *3-4
`
`(transferring the case to N.D. Cal. in part because the court would have absolute subpoena power
`
`over third party manufacturers, which are likely to have extensive relevant information
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`concerning the design and manufacturing of the accused products); Droplets, Inc. v.
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`Amazon.com, Inc., No. 11-cv-392, 2012 WL 3578605, at *5 (E.D. Tex. June 27, 2012) (finding
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`compulsory process merits transfer when numerous prior art inventors with knowledge and
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`documents relevant to the patents-in-suit reside in the transferee venue compared with few or
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`none in plaintiff’s chosen forum); In re Apple, Inc., 581 F. App’x 886, 889 (Fed. Cir. 2014)
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`(same).
`
`3.
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`The Convenience For Witnesses Factor Favors N.D. Cal.
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`The “single most important factor in transfer analysis” is the convenience to and cost for
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`the witnesses to travel to and attend trial. In re Genentech, 566 F.3d at 1343 (citation omitted).
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`See also TS Tech, 551 F.3d at 1320 (additional distance means additional travel time and
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`expense). The Fifth Circuit has adopted a “100-mile” rule to assist with this analysis, pursuant to
`
`which “when the distance between an existing venue for trial … and a proposed venue under
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`§ 1404(a) is more than 100 miles, the factor of inconvenience to witnesses increases in direct
`
`relationship to the additional distance to be traveled.” Volkswagen II, 545 F.3d at 317 (internal
`
`quotation omitted). The “100-mile” rule favors transfer when the average distance from
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`witnesses to the transferee venue is shorter than to the transferor venue. Id.
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`This factor favors transfer to N.D. Cal. Huawei Device and Huawei Dongguan have no
`
`witnesses in E.D. Tex., and travel for their witnesses from China to N.D. Cal. is more convenient
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`12
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`Case 2:17-cv-00513-JRG Document 36 Filed 11/14/17 Page 17 of 20 PageID #: 422
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`than travel to E.D. Tex. (Blackburn Decl., ¶ 24 & Exs. 31-32). In addition, most of Huawei
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`USA’s relevant witnesses are located in California or in locations closer to N.D. Cal. than to
`
`E.D. Tex. (See Section II