Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 1 of 22 PageID #: 476
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`v.
`
`
`APPLE INC.,
`
`
`
`
`
`
`Defendant.
`
`Civil Action No. 2:17-CV-516-JRG
`
`
`DEFENDANT APPLE’S MOTION TO TRANSFER VENUE
`TO THE NORTHERN DISTRICT OF CALIFORNIA
`
`

`

`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 2 of 22 PageID #: 477
`
`
`
`I.
`
`II.
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION ...............................................................................................................1
`
`NATURE AND STAGE OF THE PROCEEDINGS ..........................................................3
`
`III.
`
`FACTUAL BACKGROUND ..............................................................................................3
`
`A.
`
`B.
`
`Apple’s Principal Place Of Business, And All Documents And Employees
`Relevant To This Case, Are Located In The Northern District Of
`California. ................................................................................................................3
`
`Plaintiff Has No Meaningful Connection To The Eastern District Of
`Texas. .......................................................................................................................5
`
`1.
`
`2.
`
`AGIS Software Was Recently Formed As A Construct For
`Litigation. .....................................................................................................5
`
`None Of Plaintiff’s Witnesses Or Evidence Is Located In This
`District..........................................................................................................5
`
`C.
`
`Several Third-Party Witnesses Are Located In Or Near The Northern
`District Of California, While None Are Located In The Eastern District Of
`Texas. .......................................................................................................................7
`
`IV.
`
`ARGUMENT .......................................................................................................................7
`
`A.
`
`B.
`
`Legal Standard For Transfer Of Venue Under § 1404(a) ........................................7
`
`This Case Should Be Transferred To The Northern District Of California. ............8
`
`1.
`
`2.
`
`Venue Is Proper In The Northern District Of California. ............................8
`
`The Northern District Of California Is A Clearly More Convenient
`Forum. ..........................................................................................................9
`
`a.
`
`The Private Interest Factors Strongly Favor Transfer To
`The Northern District of California. ................................................9
`
`i.
`
`ii.
`
`The Relative Ease Of Proof Favors Transfer To The
`Northern District Of California, Where Apple Maintains
`Virtually All Of Its Relevant Evidence. .............................. 9
`
`The Northern District Of California Is A Much More
`Convenient Forum For Willing Witnesses. ...................... 10
`
`i
`
`

`

`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 3 of 22 PageID #: 478
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`Page
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`iii.
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`iv.
`
`The Availability Of Compulsory Service To Secure
`Attendance Of Third-Party Witnesses Favors Transfer. ... 12
`
`Transfer Would Make The Trial Of This Case Much More
`Convenient, Expeditious, and Inexpensive. ...................... 13
`
`b.
`
`The Public Interest Factors Favor Transfer To The
`Northern District Of California. .....................................................13
`
`i.
`
`ii.
`
`The Northern District Of California Has A Strong Local
`Interest In This Dispute, While The Eastern District Of
`Texas’s Interest Is Minimal, Favoring Transfer. .............. 13
`
`Transfer Of This Case To The Northern District Of
`California Presents No Administrative Difficulties Flowing
`From Court Congestion Or Other Issues. ......................... 15
`
`CONCLUSION ..................................................................................................................15
`
`V.
`
`
`
`
`
`ii
`
`

`

`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 4 of 22 PageID #: 479
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Core Wireless Licensing, S.A.R.L v. Apple, Inc.,
`No. 6:14-CV-751 JRG-JDL, 2015 WL 11143431 (E.D. Tex. Aug. 31,
`2015), report and recommendation adopted, 2015 WL 11145816 (E.D. Tex. Oct.
`22, 2015) ..................................................................................................................... 10, 14
`
`DSS Tech. Mgmt., Inc. v. Apple, Inc.,
`No. 6:13CV919-JDL, 2014 WL 6847569 (E.D. Tex. Nov. 7, 2014) ........................... 2, 11
`
`In re Acer Am. Corp.,
`626 F.3d 1252 (Fed. Cir. 2010), as amended (Jan. 13, 2011)........................................... 12
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)........................................................................................... 9
`
`In re Hoffmann-La Roche Inc.,
`597 F.3d 1333 (Fed. Cir. 2009)......................................................................................... 13
`
`In re Microsoft Corp.,
`630 F.3d 1361 (Fed. Cir. 2011)........................................................................................... 8
`
`In re Nintendo Co., Ltd.,
`589 F.3d 1194 (Fed. Cir. 2009)......................................................................................... 14
`
`In re TS Tech USA Corp.,
`551 F.3d 1315 (Fed. Cir. 2009)................................................................................... 14, 15
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) .............................................................................................. 8
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) .................................................................................... 8, 9, 11
`
`In re Zimmer Holdings, Inc.,
`609 F.3d 1378 (Fed. Cir. 2010)........................................................................................... 8
`
`Integrated Claim Sys., LLC v. Travelers Lloyds of Texas Ins. Co.,
`No. 2:13-CV-00649-JRG, 2014 WL 12600273 (E.D. Tex. May 29, 2014) ....................... 8
`
`Kranos IP Corp. et al v. Riddell, Inc.,
`2:17-cv-00443-JRG (E.D. Tex. Aug 28, 2017) ...................................................... 9, 10, 14
`
`Network Prot. Scis., LLC v. Juniper Networks, Inc.,
`No. 2:10-CV-224-JRG, 2012 WL 194382 (E.D. Tex. Jan. 23, 2012) ...................... 1, 8, 12
`
`iii
`
`

`

`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 5 of 22 PageID #: 480
`
`Page(s)
`
`Optimum Power Sols. LLC v. Apple, Inc.,
`794 F. Supp. 2d 696 (E.D. Tex. 2011) .......................................................................... 2, 11
`
`Oyster Optics, LLC, v. Ciena Corp.,
`2:17-cv-511-JRG, D.I. 28 (E.D. Tex. Sept. 22, 2017) ................................................ 10, 13
`
`Rembrandt Patent Innovations, LLC v. Apple, Inc.,
`No. 2:14-CV-0015-JRG (E.D. Tex. October 27, 2014) ................................................... 2-3
`
`TC Heartland LLC v. Kraft Foods Grp. Brands LLC,
`137 S. Ct. 1514 (2017) ..................................................................................................... 8-9
`
`Voxpath RS, LLC v. LG Elecs. U.S.A., Inc.,
`No. 2:10-CV-160-JRG, 2012 WL 194370 (E.D. Tex. Jan. 23, 2012) .............................. 12
`
`Wireless Recognition Techs. LLC v. A9.com, Inc.,
`No. 2:10-CV-364-JRG, 2012 WL 506669 (E.D. Tex. Feb. 15, 2012) ........... 10, 13, 14, 15
`
`Statutes
`
`28 U.S.C. § 1400(b) ........................................................................................................................ 8
`
`28 U.S.C. § 1404(a) .................................................................................................................... 1, 8
`
`
`
`
`
`
`iv
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`

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`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 6 of 22 PageID #: 481
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`
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`Apple respectfully moves to transfer this action to the Northern District of California
`
`under 28 U.S.C. § 1404(a) for the convenience of the parties and witnesses and in the interest of
`
`justice.
`
`I.
`
`INTRODUCTION
`
`This case has no real connection to this District. In 2014, AGIS, Inc.—a Florida
`
`corporation and the original assignee of the patents-in-suit—filed suit in the Southern District of
`
`Florida against Life360, Inc. concerning patents that are part of the same patent family at issue
`
`here. AGIS, Inc. lost that case, and the court awarded attorneys’ fees to the defendant,
`
`explaining that AGIS, Inc.’s “continued assertion of [the] claims seemed designed to extract
`
`settlement not based upon the merits of the claim but on the high cost of litigation.” Rather than
`
`file another case in Florida, AGIS, Inc. created a Texas LLC (the plaintiff here, AGIS Software
`
`Development LLC) in June of this year, assigned the original patents-in-suit to that entity on
`
`June 20,1 and filed this suit against Apple the next day. Indeed, in its recently-served initial
`
`disclosures, AGIS Software does not contend that any of its own potentially relevant documents
`
`or witnesses are located in the Eastern District of Texas. Its alleged “presence” here is a fiction
`
`constructed in anticipation of this litigation, and it should be disregarded. Network Prot. Scis.,
`
`LLC v. Juniper Networks, Inc., No. 2:10-CV-224-JRG, 2012 WL 194382, at *4 (E.D. Tex. Jan.
`
`23, 2012).
`
`On the other hand, this case has significant ties to the Northern District of California, and
`
`the convenience of the parties and witnesses strongly favors transfer to that District. For more
`
`than four decades, Apple has maintained its headquarters, primary research and development
`
`facilities and teams, marketing teams, financial operations, and legal department in the Northern
`
`1 An additional patent-in-suit—U.S. Patent No. 9,749,829—issued on August 29, 2017 after the
`original complaint was filed.
`
`
`
`

`

`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 7 of 22 PageID #: 482
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`
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`District of California. Based on its investigation to date, all potentially pertinent Apple
`
`witnesses and documents concerning the design, development, marketing, and sale of the
`
`accused software features are located in the Northern District of California. Apple does not
`
`engage in any research, design, or development of those features in the Eastern District of Texas
`
`(or anywhere else in the State of Texas), and no Apple employees within Texas have been
`
`responsible for any marketing, sales, or financial decisions conceivably relevant to this case.
`
`Key non-party witnesses also reside in or near the Northern District of California. For
`
`example, an attorney responsible for prosecuting four of the patents-in-suit (241 of the 250
`
`claims asserted by the plaintiff) is located in the Northern District of California. In addition, one
`
`of the two named inventors on the patents-in-suit resides in Redmond, Washington, which is
`
`significantly closer to the Northern District of California than to the Eastern District of Texas.
`
`At bottom, no meaningful connection exists between this District and the plaintiff, the
`
`defendant, the asserted patents, or the accused products. Apple developed the technology
`
`accused of infringement in the Northern District of California, and most of the evidence and
`
`witnesses potentially relevant to this case are located there. Because the Northern District of
`
`California would be a more convenient and less expensive venue for Apple and third-party
`
`witnesses—and would impose no additional burden on the plaintiff—this case should be
`
`transferred to that District. See, e.g., Optimum Power Sols. LLC v. Apple, Inc., 794 F. Supp. 2d
`
`696, 702-03 (E.D. Tex. 2011); DSS Tech. Mgmt., Inc. v. Apple, Inc., No. 6:13CV919-JDL, 2014
`
`WL 6847569, at *2-4 (E.D. Tex. Nov. 7, 2014); Rembrandt Patent Innovations, LLC v. Apple,
`
`Inc., No. 2:14-CV-0015-JRG (E.D. Tex. Oct. 27, 2014), D.I. 88.2
`
`
`2 In Rembrandt, many or all of the Apple employees with relevant information, as well as third-
`party attorneys with potentially relevant information regarding willfulness, were located in or
`
`
`
`
`2
`
`

`

`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 8 of 22 PageID #: 483
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`
`
`II.
`
`NATURE AND STAGE OF THE PROCEEDINGS
`
`Plaintiff AGIS Software Development LLC (“AGIS Software”) filed its Complaint
`
`against Apple on June 21, 2017, alleging infringement of U.S. Patent Nos. 8,213,970, 9,408,055,
`
`9,445,251, and 9,467,838. (D.I. 1.) On September 18, 2017, AGIS Software filed an Amended
`
`Complaint, alleging infringement of the originally-asserted patents and U.S. Patent No.
`
`9,749,829 (collectively, the “patents-in-suit”). (D.I. 32.) Apple filed its Answer to the Amended
`
`Complaint on October 2, 2017. (D.I. 36.) In its contentions, AGIS Software alleges
`
`infringement of 250 claims across five patents-in-suit by certain software features running on
`
`scores of Apple products, including numerous generations of the iPhone (4, 4s, 5, 5s, SE, 5C, 6,
`
`6 Plus, 6s, 6s+, 7, 7+, 7 Red, 8, 8 Plus, X), iPad (1-5), iPad Air (1-2), iPad Mini (1-4), iPad Pro
`
`(9.7, 10.5, and 12.94), iPod Touch (4-6), and Apple Watch (Series 1, 2, 3, Edition, Hermes,
`
`Nike+, Sport). (Declaration Of Kerri-Ann Limbeek In Support Of Apple’s Motion To Transfer
`
`Venue (“Limbeek Decl.”) ¶ 3, Ex. 1 at 2-6.)
`
`The Docket Control Order was entered less than one month ago. (D.I. 46.) The parties
`
`have not exchanged any claim construction disclosures, and the Markman hearing is more than
`
`six months away. (Id. at 3.) Trial is not scheduled until December 2018. (Id. at 1.)
`
`III.
`
`FACTUAL BACKGROUND
`
`A.
`
`Apple’s Principal Place Of Business, And All Documents And Employees
`Relevant To This Case, Are Located In The Northern District Of California.
`
`Apple is a California corporation that has maintained its headquarters and principal place
`
`of business in Cupertino, California, in the Northern District of California, since its inception in
`
`
`near the Northern District of California, while the plaintiff was located in Pennsylvania, and the
`inventors of the patent-in-suit and its patent prosecution counsel resided in Virginia, Maryland,
`New Jersey, and Pennsylvania. No. 2:14-CV-0015-JRG, 2014 WL 3835421, at *2-3 (E.D. Tex.
`Aug. 1, 2014), D.I. 51. Although the Court originally denied Apple’s transfer motion (id.), that
`order was vacated (id., D.I. 59), and the motion was ultimately granted (id., D.I. 88).
`
`
`
`3
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`

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`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 9 of 22 PageID #: 484
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`
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`1976. (Declaration of Michael Jaynes in Support of Apple Inc.’s Motion to Transfer Venue
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`(“Jaynes Decl.”) ¶ 3.) Apple maintains its management and primary research and development
`
`facilities in or near Cupertino, and it employs approximately 30,000 people in that area. (Id. ¶ 5.)
`
`Any and all of Apple’s research, design, and development relating to the accused Find My
`
`iPhone, Find My Friends, Messages, and Maps software applications and features occur in
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`Cupertino or nearby Sunnyvale, California. (Id. ¶¶ 8-13.) Likewise any and all of Apple’s
`
`activities concerning the marketing, sales, and licensing of the implicated iPhone, iPod Touch,
`
`Apple Watch and iPad products occur in that area. (Id. ¶¶ 15-18.) Apple also maintains all of its
`
`potentially relevant business records—such as marketing materials, financial data for sales, and
`
`patent licenses—in the Northern District of California. (Id. ¶¶ 15, 17-18.)
`
`Based on Apple’s investigation to date, at least seven Apple employees may have
`
`information relevant to this case. At least five Apple engineers—Raghu Pai, Rahul Zingde, Scott
`
`Lopatin, Navin Suparna, and Roberto Garcia—are believed to have relevant knowledge or
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`documents concerning the development, operation, and functionality of the accused software
`
`applications and features. (Jaynes Decl. ¶¶ 9-13.) Michael Jaynes is knowledgeable about the
`
`sales and financial records related to the accused products. (Id. ¶ 15.) Evan Krasts is
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`knowledgeable regarding the marketing of the accused features. (Id. ¶ 16.) All seven Apple
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`employees are based in Northern California, and Apple anticipates that it may call one or more
`
`of those employees as witnesses at trial. Additionally, because all research, development and
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`business relating to the accused products and features occurs in or near Cupertino, any additional
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`Apple witnesses and documents relevant to this case are also likely located in Northern
`
`California.
`
`Apple is unaware of any employees within the Eastern District of Texas involved in the
`
`
`
`4
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`

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`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 10 of 22 PageID #: 485
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`
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`research, design, or development of the software features at issue, or responsible for marketing,
`
`sales, or financial decisions conceivably relevant to this case. (Id. ¶¶ 19-20, 22.) Apple does not
`
`maintain any documents relevant to this case in the Eastern District of Texas. (Id.)
`
`B.
`
`Plaintiff Has No Meaningful Connection To The Eastern District Of Texas.
`
`1.
`
`AGIS Software Was Recently Formed As A Construct For Litigation.
`
`In April 2017, a mandate issued from the Federal Circuit to enforce a final judgment
`
`against AGIS, Inc.—the Florida corporation that was the original assignee of the patents-in-
`
`suit—in a case involving patents related to those asserted here. (Limbeek Decl. ¶¶ 4, 5, Exs. 2,
`
`3.) After a jury verdict of non-infringement in that case, the Southern District of Florida Court
`
`awarded attorneys’ fees against AGIS, Inc. based on the exceptional weakness of the case,
`
`reasoning that the “continued assertion of these claims seemed designed to extract settlement not
`
`based upon the merits of the claim but on the high cost of litigation.” (Limbeek Decl. ¶ 6, Ex. 4
`
`at 2.)
`
`Two months later, on June 20, 2017, AGIS, Inc. assigned the patents asserted in its
`
`original complaint to AGIS Holdings Inc., another Florida corporation. (Limbeek Decl. ¶¶ 7-10,
`
`Exs. 5-8.) The same day, AGIS Holdings Inc. assigned those patents to the Plaintiff, AGIS
`
`Software, which had been formed in Texas earlier that month. (Limbeek Decl. ¶¶ 7-10, 13, Exs.
`
`5-8, 11.) The very next day, on June 21, 2017, AGIS Software filed this suit. (D.I. 1.)
`
`2.
`
`None Of Plaintiff’s Witnesses Or Evidence Is Located In This District.
`
`AGIS, Inc. is incorporated in Florida and, according to its website, has maintained its
`
`principal place of business in Jupiter, Florida since 2004. (Limbeek Decl. ¶ 12, Ex. 10 ¶ 4; ¶ 11,
`
`Ex. 9 at 2.) In the Florida litigation against Life360, Inc., Malcolm K. Beyer, Jr., a named
`
`inventor on all of the patents-in-suit and the current CEO of Plaintiff AGIS Software, affirmed in
`
`a sworn declaration that:
`
`
`
`5
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`

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`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 11 of 22 PageID #: 486
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` “[A]ll documents related to the conception, reduction to practice, and
`prosecution of the Patents-in-Suit, a significant portion of which are in paper
`form, are located either at AGIS’s Jupiter Office or at the offices of Malin Haley
`DiMaggio & Bowen in Ft. Lauderdale.” (Limbeek Decl. ¶ 12, Ex. 10 ¶ 8);
`
` “AGIS conducts most of its business in the Jupiter Office, including the majority
`of correspondence with potential customers, as well as product testing and
`deployment.” (Id. ¶ 10);
`
` “AGIS’s financial records, including a significant volume of paper documents,
`[are maintained] at the Wisneski & Associates office in Jupiter, Florida.” (Id. ¶
`12);
`
` “[A]ll current AGIS products are deployed from servers located at the Jupiter
`Office (i.e., AGIS’s source code repository is here, as are servers that are
`accessed by the users of AGIS’s software)” (id. ¶ 18); and
`
` “[M]uch of AGIS’s product testing is performed in the Jupiter Office.” (Id.)
`
`
`The Amended Complaint here alleges that AGIS, Inc. (the Florida corporation)—not AGIS
`
`Software (the newly-created Texas LLC)—developed prototypes that purportedly practice
`
`patents in AGIS’s portfolio and that AGIS, Inc. is the licensee of the patents-in-suit. (D.I. 32 ¶¶
`
`12, 13.)
`
`Five months ago, the plaintiff in this case, AGIS Software Development LLC, was
`
`created under Texas law, and the patents-in-suit were assigned to that entity shortly thereafter.
`
`(Limbeek Decl. ¶¶ 13, 7-10, Exs. 11, 5-8.) According to its Certificate of Formation, AGIS
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`Software has no managers; it is governed by AGIS Holdings Inc., which resides at the same
`
`address as AGIS, Inc. in Florida. (Limbeek Decl. ¶¶ 13, 14, Exs. 11 at 1; 12 at 2.) AGIS
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`Software’s organizer, Thomas C. Meriam, is an attorney located in New York. (Limbeek Decl. ¶
`
`13, Ex. 11 at 3.) AGIS Software’s only connection to Texas appears to be a registered agent.
`
`(Id. at 1.) No AGIS entity appears to conduct any operations in the Eastern District of Texas.
`
`In its initial disclosures, AGIS Software identifies four AGIS Software employees as
`
`likely possessing information relevant to this case—Malcolm and Margaret Beyer, Ronald
`
`
`
`6
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`

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`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 12 of 22 PageID #: 487
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`
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`Wisneski, and Sandel Blackwell. (Limbeek Decl. ¶ 15, Ex. 13 at 2-3.) None is located in the
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`Eastern District of Texas. Mr. Beyer previously testified that he and Margaret Beyer have
`
`resided in Florida for three decades, that Mr. Wisneski has worked in Jupiter, Florida since
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`AGIS’s formation, and that Sandel Blackwell resided in Kansas. (Limbeek Decl. ¶ 12, Ex. 10 ¶¶
`
`1, 12-13.)
`
`C.
`
`Several Third-Party Witnesses Are Located In Or Near The Northern
`District Of California, While None Are Located In The Eastern District Of
`Texas.
`
`Several potential third-party witnesses are located in or near the Northern District of
`
`California. A prosecuting attorney for four of the patents-in-suit, Daniel J. Burns, is believed to
`
`be located in Santa Clara, California, in the Northern District of California. (Limbeek Decl. ¶¶
`
`16-20, Ex. 14 at 2, 4, 6, Ex. 15 at 2, 3, Ex. 16 at 2, 3, 5, Ex. 17 at 4, 6, 7, Ex. 18 at 1.) In
`
`addition, one of two of the named inventors on the patents-in-suit, Christopher R. Rice, is located
`
`in Redmond, Washington, which is significantly closer to the Northern District of California than
`
`to the Eastern District of Texas. (Limbeek Decl. ¶¶ 19, 21-23, Exs. 17, 19-20.) In its initial
`
`disclosures, AGIS Software contends that Mr. Rice has knowledge regarding the prototyping of
`
`the purported inventions of all five of the patents-in-suit and the conception and reduction to
`
`practice of three of those patents. (Limbeek Decl. ¶ 15, Ex. 13 at 2.) The other prosecuting
`
`attorneys identified in AGIS Software’s initial disclosures, including other attorneys in the
`
`Goodwin Proctor LLP law firm and Barry Haley, are located in Boston, Massachusetts and Ft.
`
`Lauderdale, Florida, respectively (and therefore far from both Texas and California). (Id. at 3.)
`
`IV. ARGUMENT
`
`A.
`
`Legal Standard For Transfer Of Venue Under § 1404(a)
`
`“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.”
`
`
`
`7
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`

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`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 13 of 22 PageID #: 488
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`
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`28 U.S.C. § 1404(a). The initial threshold question is whether the suit could have been brought
`
`in the proposed transferee district. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)
`
`(Volkswagen I). If that threshold requirement is satisfied, the court must weigh the relative
`
`conveniences of the current district against the transferee district. See In re Volkswagen of Am.,
`
`Inc., 545 F.3d 304, 315 (5th Cir. 2008) (Volkswagen II). In that analysis, courts in the Fifth
`
`Circuit consider several “private” and “public” interest factors, none of which are dispositive:
`
`The private interest factors include: (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.
`The public interest factors include: (1) the administrative difficulties flowing from
`court congestion; (2) the local interest in having localized interests 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 conflict of laws [in] the application
`of foreign law.
`
`Integrated Claim Sys., LLC v. Travelers Lloyds of Texas Ins. Co., No. 2:13-CV-00649-JRG,
`
`2014 WL 12600273, at *2 (E.D. Tex. May 29, 2014) (internal citations omitted). The plaintiff’s
`
`choice of venue is not separately considered. Volkswagen II, 545 F.3d at 314-15. In addition,
`
`“recent and ephemeral contacts with a forum, which are nothing more than a construct for
`
`litigation, should not be considered in a § 1404(a) analysis.” Network Prot. Scis., LLC, 2012 WL
`
`194382, at *4 (citing In re Microsoft Corp., 630 F.3d 1361, 1364–65 (Fed. Cir. 2011); In re
`
`Zimmer Holdings, Inc., 609 F.3d 1378 (Fed. Cir. 2010)).
`
`B.
`
`This Case Should Be Transferred To The Northern District Of California.
`
`1.
`
`Venue Is Proper In The Northern District Of California.
`
`This case could have properly been brought in the Northern District of California because
`
`that is where Apple resides. See 28 U.S.C. § 1400(b). “[A] domestic corporation ‘resides’ only
`
`in its State of incorporation for purposes of the patent venue statute.” TC Heartland LLC v.
`
`
`
`8
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`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 14 of 22 PageID #: 489
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`Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514, 1517 (2017). Apple is a California corporation.
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`(Jaynes Decl. ¶ 3). Thus, venue is proper in the Northern District of California.
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`2.
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`The Northern District Of California Is A Clearly More Convenient
`Forum.
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`a.
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`The Private Interest Factors Strongly Favor Transfer To The
`Northern District of California.
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`i.
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`The Relative Ease Of Proof Favors Transfer To The
`Northern District Of California, Where Apple
`Maintains Virtually All Of Its Relevant Evidence.
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`“In patent infringement cases, the bulk of the relevant evidence usually comes from the
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`accused infringer. Consequently, the place where the defendant’s documents are kept weighs in
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`favor of transfer to that location.” In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009)
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`(internal citation omitted).3 Here, Apple maintains all of its business records that are potentially
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`relevant to this case—such as research, development and marketing materials, financial and sales
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`data concerning the implicated products, and its patent licenses—in or near its corporate
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`headquarters in the Northern District of California, and none in Texas. (Jaynes Decl. ¶¶ 14-15,
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`17-18, 22.)
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`By contrast, no relevant sources of proof appear to be meaningfully based in this District.
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`AGIS Software’s only tie to the Eastern District of Texas appears to be its incorporation in the
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`State of Texas just 20 days before commencing this suit. It acquired the patents-in-suit from
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`AGIS, Inc.—a Florida corporation—just one day before filing this suit. Any documents relevant
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`3 As the Fifth Circuit explained in Volkswagen II, notwithstanding modern technology and the
`ability of parties to transport documents to various locations, ease of access to sources of proof
`remains a “meaningful factor” in the § 1404(a) analysis. 545 F.3d at 316; see also Kranos IP
`Corp. et al v. Riddell, Inc., 2:17-cv-00443-JRG (E.D. Tex. Aug 28, 2017), D.I. 26 at 21 n. 11
`(noting that despite “arguments that in today’s digital world the proper weight to be given to the
`physical location of paper documents should be minimal,” “this Court continues to treat this
`factor on an equal par with the remaining factors”).
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`9
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`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 15 of 22 PageID #: 490
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`to the circumstances leading to the purported invention and issuance of the patents-in-suit, and
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`their alleged value, are likely located in Florida or in the Northern District of California, where
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`four patents-in-suit were prosecuted. (See Limbeek Decl. ¶¶ 16-19, Exs. 14-17; ¶ 12, Ex. 10 ¶¶
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`7-8, 10, 12, 18.) Moreover, it is not clear whether plaintiff even contends that its Florida-based
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`records are relevant to this case—in its infringement contentions, plaintiff asserts that it “does
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`not intend to rely on the assertion that its own apparatuses, products, devices, processes,
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`methods, acts, or other instrumentalities practice the claims inventions.” (Limbeek Decl. ¶ 3, Ex.
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`1 at 8.) Therefore, the “ease of access to sources of proof” factor weighs heavily in favor of
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`transfer. See, e.g., Core Wireless Licensing, S.A.R.L v. Apple, Inc., No. 6:14-CV-751 JRG-JDL,
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`2015 WL 11143431, at *4 (E.D. Tex. Aug. 31, 2015), report and recommendation
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`adopted, 2015 WL 11145816 (E.D. Tex. Oct. 22, 2015) (holding that “this factor weighs in
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`favor of transfer” based on “Apple’s specific identification of the location of its sources of proof
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`in the Northern District of California, including specific employees with relevant knowledge and
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`specific documents”).4
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`ii.
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`The Northern District Of California Is A Much More
`Convenient Forum For Willing Witnesses.
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`All of Apple’s potentially relevant witnesses related to the research, development, and
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`marketing of the accused software features are located in the Northern District of California.
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`4 See also, e.g. Oyster Optics, LLC, v. Ciena Corp., 2:17-cv-511-JRG, D.I. 28 at 11 (E.D. Tex.
`Sept. 22, 2017) (granting transfer where plaintiff incorporated in Texas five months prior to
`filing suit, defendant’s largest U.S.-based research and development facility was in San Jose,
`California, and no documents or evidence were located in this District); Kranos, 2:17-cv-00443-
`JRG, D.I. 26 at 22 (holding that this factor favored transfer where “no party has pointed to
`relevant documents or other evidence in this District.”); Wireless Recognition Techs. LLC v.
`A9.com, Inc., No. 2:10-CV-364-JRG, 2012 WL 506669, at *4 (E.D. Tex. Feb. 15, 2012) (“a
`large number of witnesses and other sources of proof are located [in the Northern District of
`California], and there are no identified witnesses or evidence located in the Eastern District of
`Texas.”).
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`Case 2:17-cv-00516-JRG Document 53 Filed 11/13/17 Page 16 of 22 PageID #: 491
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`(Jaynes Decl. ¶¶ 8-13, 15-16, 18.) For example, all seven of the Apple employees believed to
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`have information relevant to this case are located in the Northern District of California. (Id. ¶¶
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`9-13, 15-16, 18) Moreover, based on Apple’s investigation to date, all Apple employees
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`responsible for the research, design, development, and marketing of the features accused of
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`infringement work in or near Apple’s headquarters in the Northern District of California. (Id.)
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`Therefore, it is virtually certain that any relevant Apple employee called to testify at trial would
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`need to travel a significant distance—thereby increasing the probability of increased expense and
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`time away from regular employment—if trial is held in the Eastern District of Texas. See
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`Volkswagen II, 545 F.3d at 317 (“[A]dditional distance means additional travel time.”).
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`By contrast, Plaintiff has not identified any potential witnesses located in this District.
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`(Limbeek Decl. ¶ 15, Ex. 13 at 2-4.) Most of the witnesses identified in AGIS Software’s initial
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`disclosures are located in Florida where, according to its web site, AGIS, Inc. is currently located
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`and where it has previously represented that it conducts the vast majority of its business.
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`(Limbeek Decl. ¶ 15, Ex. 13 at 2-4; ¶ 11, Ex. 9 at 2; ¶ 12, Ex. 10 ¶¶ 1, 4, 7-12, 18.)5 Those
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`witnesses would be required to travel a substantial distance to testify regardless of whether trial
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`is held in Texas or California. Transfer would substantially decrease the cost of at