Case 2:17-cv-00516-JRG Document 57 Filed 12/11/17 Page 1 of 21 PageID #: 622
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
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`
`
`v.
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`
`APPLE, INC.,
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`
`
`
`
`Case No. 2:17-CV-0516-JRG
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`
`
`JURY TRIAL DEMANDED
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`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S
`OPPOSITION TO DEFENDANT APPLE, INC.’S MOTION TO TRANSFER
`VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA (DKT. NO. 53)
`
`
`Defendant.
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`
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`

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`Case 2:17-cv-00516-JRG Document 57 Filed 12/11/17 Page 2 of 21 PageID #: 623
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`TABLE OF CONTENTS
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`Page No(s).
`
`
`INTRODUCTION .......................................................................................................................... 1
`
`FACTUAL BACKGROUND ......................................................................................................... 3
`
`A.
`
`B.
`
`C.
`
`AGIS Software Development LLC, AGIS Inc., and AGIS Holdings, LLC ........... 3
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`AGIS’s Witnesses ................................................................................................... 4
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`Apple’s Connections to the Eastern District of Texas ............................................ 5
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`ARGUMENT .................................................................................................................................. 6
`
`I.
`
`II.
`
`The Applicable Legal Standards for Transfer of Venue ..................................................... 6
`
`The Private Interest Factors All Weigh Strongly Against Transfer .................................... 7
`
`A.
`
`B.
`
`C.
`
`D.
`
`Ease of Access to Sources of Proof Weigh Against Transfer ................................. 7
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`This District is More Convenient for Willing Witnesses........................................ 8
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`Availability of Compulsory Process Does Not Favor Transfer ............................ 11
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`Judicial Economy Favors This District ................................................................. 12
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`III.
`
`The Public Interest Factors Weigh Strongly Against Transfer ......................................... 13
`
`A.
`
`B.
`
`C.
`
`This District’s Strong Localized Interest Weighs Against Transfer ..................... 13
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`Faster Disposition in this District Weighs Against Transfer ................................ 14
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`The Remaining Public Interest Factors Do Not Support Transfer ........................ 15
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`CONCLUSION ............................................................................................................................. 15
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`
`
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`i
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`Case 2:17-cv-00516-JRG Document 57 Filed 12/11/17 Page 3 of 21 PageID #: 624
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Aerielle, Inc. v. Monster Cable Prod., Inc.,
`No. 206CV382TJW, 2007 WL 951639 (E.D. Tex. Mar. 26, 2007) ....................................9, 12
`
`Aloft Media, LLC v. Adobe Sys. Inc.,
`No. 6:07–CV–355, 2008 WL 819956 (E.D. Tex. Mar. 25, 2008) ...........................6, 10, 12, 14
`
`In re Apple Inc.,
`456 Fed. Appx. 907 (Fed. Cir. 2012) .......................................................................................14
`
`Continental Grain Co. v. The FBL-585,
`364 U.S. 19 (1960) ...................................................................................................................13
`
`Core Wireless Licensing, S.A.R.L. v. Apple, Inc.,
`No. 6:14-cv-751, 2015 WL 11143431 (E.D. Tex. Aug. 31, 2015) ............................................8
`
`DSS Tech. Mgmt, Inc. v. Apple Inc.,
`No. 6:13cv919, 2014 WL 6847569 (E.D. Tex. Nov. 7, 2014) ................................................10
`
`Frito-Lay N. Am., Inc. v. Medallion Foods, Inc.,
`867 F. Supp. 2d 859 .......................................................................................................9, 12, 14
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)................................................................................................15
`
`Gulf Oil Corp. v. Gilbert,
`330 U.S. 501 (1947) ...................................................................................................................7
`
`In re Horseshoe Entm’t,
`337 F.3d 429 (5th Cir. 2003) .....................................................................................................7
`
`Mangosoft Intellectual Property, Inc. v. Skype Techs. SA,
`2007 WL 2008899 (E.D. Tex. July 5, 2007) ...........................................................................10
`
`Mears Techs., Inc. v. Finisar Corp.,
`No. 2:13-cv-376-JRG, 2014 WL 1652603 (E.D. Tex. April 24, 2014) .....................................6
`
`Network Protection Sciences, LLC v. Juniper Networks, Inc.,
`No. 2:10-cv-224, 2012 WL 194382 (E.D. Tex. Jan. 23, 2012) .........................................12, 13
`
`Network-1 Sec. Sols., Inc. v. D-Link Corp.,
`433 F. Supp. 2d 795 (E.D. Tex. 2006) ...........................................................................8, 14, 15
`
`
`
`i
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`

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`Case 2:17-cv-00516-JRG Document 57 Filed 12/11/17 Page 4 of 21 PageID #: 625
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`Optimum Power Solutions LLC v. Apple, Inc.,
`794 F. Supp. (E.D. Tex. 2011) .................................................................................................10
`
`Oyster Optics, LLC v. Ciena Corp.,
`2:17-cv-511-JRG, D.I. 28 at 11 (E.D. Tex. Sept. 22, 2017) ......................................................8
`
`PersonalWeb Technologies, LLC v. NEC Corp. of Am., Inc.,
`No. 6:11-CV-655, 2013 WL 9600333 (E.D. Tex. Mar. 21, 2013) ....................................11, 13
`
`Regents of Univ. of Cal. v. Eli Lilly & Co.,
`119 F.3d 1559 (Fed.Cir.1997)....................................................................................................7
`
`Rossco Holdings Inc. v. Best W. Int'l Inc.,
`No. H-06-0155, 2006 WL 1007474 (S.D. Tex. Apr. 18, 2006) .................................................9
`
`Shoemake v. Union Pacific R.R. Co.,
`233 F. Supp. 2d 828 (E.D. Tex. 2002) .......................................................................................9
`
`In re Vistaprint,
`628 F.3d 1342 (Fed. Cir. 2010)................................................................................................13
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) .....................................................................................................7
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) (en banc) .................................................................................7, 8
`
`In re Volkswagen of Am., Inc.,
`566 F.3d 1349 (Fed. Cir. 2009)................................................................................................13
`
`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) .......................................11
`
`Wireless Recognition Techs. LLC v. A9.com, Inc.,
`No. 2-10:cv-364-JRG, 2012 WL 506669 (E.D. Tex. Feb. 15, 2012) ........................................9
`
`Statutes
`
`28 U.S.C. § 1404(a) ...............................................................................................................1, 6, 14
`
`Other Authorities
`
`Fed. R. Civ. P. 26(a) ......................................................................................................................12
`
`Rule 3-4(a) .......................................................................................................................................8
`
`
`
`
`
`ii
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`Case 2:17-cv-00516-JRG Document 57 Filed 12/11/17 Page 5 of 21 PageID #: 626
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`Plaintiff AGIS Software Development LLC (“Plaintiff” or “AGIS”) hereby opposes
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`Defendant Apple, Inc.’s (“Apple”) motion to transfer this action to the Northern District of
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`California under 28 U.S.C. § 1404(a) (the “Motion”). (Dkt. No. 53). This motion should be
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`denied because Apple 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, nor has Apple shown that
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`the other relevant factors weigh in favor of transfer.
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`INTRODUCTION
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`
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`Apple has failed to demonstrate that the convenience factors justify transferring this case
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`to the Northern District of California. While Apple claims that its proposed venue may be more
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`convenient for Apple and its employees, transfer would greatly inconvenience AGIS’s witnesses
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`as well as many of the expected non-party witnesses. Instead, Apple ignores AGIS and its
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`founder’s ties to this District and omits any mention of a consultant in this District identified by
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`AGIS, whom AGIS believes will be a key witness on the development of products and
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`technology related to the Patents-in-Suit.
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`
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`Without pointing to specifics, Apple claims that seven of its own employees located in
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`California may have relevant information and may be used as witnesses in this case. AGIS’s
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`party witnesses, who are far less speculative than Apple’s, do not live or work anywhere near
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`Northern California, and it would be a tremendous disruption to AGIS’s business if AGIS’s
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`employees and consultants were forced to travel there to participate in this case. In fact, aside
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`from its own employees, Apple points to only two potential witnesses who are closer to the
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`Northern District of California than to the Eastern District of Texas. One is an attorney who
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`prosecuted the Patents-in-Suit, for whom Apple offers no explanation as to why his testimony is
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`required. The other is a named inventor who lives in Redmond, Washington. That witness
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`works for AGIS’s sister company, AGIS Inc., and has agreed to travel to Marshall, Texas if the
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`case remains in the Eastern District of Texas. This District would be far more convenient for all
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`of AGIS’s other witnesses who live and work in Texas, Florida and Kansas, for whom traveling
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`to this Court is much closer and easier. In addition, this District is more convenient for
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`anticipated non-party witnesses from AT&T, Sprint, and Verizon, who are responsible for
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`marketing, designing, and whom AGIS believes will provide information about the value of the
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`accused software.
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`
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`Apple devotes much of its motion to pointing out the fact that AGIS Software Holding
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`LLC was formally established as a Texas limited liability company shortly before filing this suit,
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`but ignores AGIS's other connections to this District and surrounding area. For example, AGIS
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`Inc. maintains an office in Austin, a relatively short distance away, and AGIS regularly works
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`with a consultant in Allen, Texas. AGIS’s founder and CEO, Malcolm "Cap" Beyer, and his
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`family have longstanding ties to this District, owning property in Texarkana for 150 years.
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`Apple also focuses on tangential issues such as a lawsuit brought by a related AGIS entity
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`several years ago in Florida, involving different parties, different patents and different accused
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`products.1 None of the facts relating to that action demonstrate any connection between AGIS
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`and the Northern District of California.
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`
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`Although Apple attempts to portray itself as a virtual stranger to this District with no
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`meaningful connection between its activities in Texas and this action, its largest campus outside
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`of its California headquarters is located in Austin. This 1.1 million square foot facility where
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`Apple currently employs more than 6,000 people has been reported to house Apple’s business
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`1 Apple attaches to its papers a declaration made by Mr. Beyer in 2014 from that action opposing transfer
`and describing AGIS Inc.’s contacts with Florida. Dkt. 53-12. This is misleading. The issue on that
`motion was a proposed transfer from the Southern District of Florida to the Northern District of
`California. There was no need for Mr. Beyer to elaborate on AGIS Inc.’s connections to the Eastern
`District of Texas which existed at the time.
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`2
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`operations for the entire Western Hemisphere. Rubino Decl., at ¶ 2. It is difficult to believe that
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`none of the documents or witnesses relevant to the development or sales of the accused iPhones,
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`iPads, Apple watches, and other devices containing the patented features are located at such a
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`large and important facility.
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`
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`Finally, because this case has been pending for almost 6 months and is already well into
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`discovery, and because closely related suits are being litigated in this District, judicial economy
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`favors leaving this action in the Eastern District of Texas. For all of these reasons and those
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`stated in more detail below, Apple's motion should be denied.
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`FACTUAL BACKGROUND
`
`A.
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`AGIS Software Development LLC, AGIS Inc., and AGIS Holdings, LLC
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`
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`AGIS, Inc. was founded by former U.S. Marine Cap Beyer in 2004. AGIS, Inc.’s
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`primary business has revolved around offering the “LifeRing” solution which includes software
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`and a server-based solution used to enable smartphone, tablet, and PC users to easily establish
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`secure ad hoc digital networks. Beyer Decl., at ¶ 12. LifeRing 5.0 and its prior versions have
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`been sold to military, defense and first-responder customers, and private industry customers
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`since 2004. Id. AGIS Inc. also offers the “Assist” solution which is an emergency broadcast and
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`response system connecting employees to a company command center and a network of
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`responders through personal smartphones. Id.
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`
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`In 2017, Mr. Beyer and the other AGIS Inc. shareholders formed AGIS Holdings,
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`Incorporated (“AGIS Holdings”), 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. Id. at ¶ 8. AGIS’s principal place of business is located at 100 W. Houston Street,
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`Marshall, Texas. Id. at ¶ 9. AGIS Inc. has offices in Lenexa, Kansas, Jupiter, Florida and
`3
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`Case 2:17-cv-00516-JRG Document 57 Filed 12/11/17 Page 8 of 21 PageID #: 629
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`Austin, Texas. All of AGIS and AGIS Inc.’s employees, with the exception of one, are located
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`significantly closer to this District than the Northern District of California. Id. at ¶¶ 10-22.
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`B.
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`AGIS’s Witnesses
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`AGIS expects to rely on witnesses located in or much closer to this District than to the
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`Northern District of California. Mr. Beyer, who is AGIS’s CEO and one of two named inventors
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`on the asserted patents and will be one of AGIS’s primary witnesses, lives in Jupiter, Florida,
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`940 miles from the courthouse in Marshall, and 2,500 miles from Northern California. Id. at ¶ 5;
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`Rubino Decl. at ¶ 4. Mr. Beyer possesses highly relevant knowledge regarding the conception
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`and reduction to practice of the Patents-in-Suit and has longstanding ties to this District. See
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`Beyer Decl., at ¶¶ 1, 22. Mr. Beyer’s family has owned over 2,500 acres of land in Bowie
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`County since 1867, and he has owned 412 acres of land in Bowie County since 2001. Id. at ¶ 22.
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`
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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. Id. at ¶ 17. His
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`responsibilities include overseeing contracts and licenses for AGIS and its related entities, as
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`well as ensuring compliance with rules and contractual clauses linked to intellectual property
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`rights. Id. Mr. Sietsema lives and works in Austin, Texas, id., 1200 miles closer to the
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`courthouse in Marshall than Northern California. See Rubino Decl., 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. Mr. Blackwell manages the
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`development of the software included in the LifeRing and Assist solutions. Beyer Decl., at ¶ 18.
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`Mr. Blackwell works at AGIS Inc.’s Lenexa, Kansas office, as well at its office in Jupiter,
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`Florida. Id. Mr. Blackwell maintains regular communication with AGIS Inc.’s programmers
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`and software developers in Florida, Kansas, and Texas, and regularly works with an AGIS
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`consultant in this District. Id. Mr. Blackwell's office in Lenexa, Kansas is 444 miles from
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`Case 2:17-cv-00516-JRG Document 57 Filed 12/11/17 Page 9 of 21 PageID #: 630
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`Marshall and 1,498 miles to Northern California. Rubino Decl., at ¶ 4. Mr. Blackwell owns land
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`in Jasper County, Texas, has close personal ties to Texas and travels here frequently. Beyer
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`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 consultant for AGIS. Mr. Armstrong is responsible for designing and
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`developing client-side and server-side software for the LifeRing and Assist solutions. Beyer
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`Decl., at ¶ 16. Mr. Armstrong lives and works in Allen, Texas, in this District. He works closely
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`with Mr. Blackwell and AGIS Inc. employees such as Rebecca Clarke, regarding software
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`development and quality assurance. Id. at ¶ 15. Transfer to the Northern District of California
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`will require Mr. Armstrong to travel approximately 1,482 additional miles to testify at trial, and
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`will put him beyond the subpoena power of the court. See Rubino Decl., at ¶ 4.
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`C.
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`Apple’s Connections to the Eastern District of Texas
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`
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`Apple’s motion lists several possible witnesses who may provide relevant testimony, but
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`ignores its substantial links to this District, including employees with potentially relevant
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`information. Apple maintains several regular and established places of business in Texas,
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`including the company’s second largest campus in Austin, as well as Apple stores in Plano and
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`Frisco. Rubino Decl., at ¶¶ 2, 5-6.2 Apple has a Data Center Network Team of technical
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`personnel in Dallas who support Apple’s external-facing applications and “provide network
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`design, operations and software development support,” and thus are likely to have relevant
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`knowledge of product research, design, and development. Id. at ¶ 9. Apple also employs a CAD
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`team in Austin who develop and support Apple’s mobile products and thus may also have
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`relevant knowledge. Id. at ¶ 10. At this point, although AGIS has no way to determine whether
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`2 Apple is reported to have received over $20 million in funding from the State of Texas in exchange for
`its promise to build that facility and hire this large number of people. Rubino Decl., at ¶ 8.
`5
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`Case 2:17-cv-00516-JRG Document 57 Filed 12/11/17 Page 10 of 21 PageID #: 631
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`or how many Apple employees at these locations will need to be called upon to testify, this case
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`should not be transferred based on Apple’s unilateral assertions that all of its witnesses are in the
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`Northern District of California.
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`The Applicable Legal Standards for Transfer of Venue
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`ARGUMENT
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`“For the convenience of parties and witnesses, in the interest of justice, a district court
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`I.
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`
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`may transfer any civil action to any other district or division where it might have been brought.”
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`28 U.S.C. § 1404(a). When seeking a transfer venue for convenience, “the movant bears the
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`burden to clearly demonstrate that a transfer is ‘clearly more convenient’ than the venue chosen
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`by the plaintiff.” Mears Techs., Inc. v. Finisar Corp., No. 2:13-cv-376-JRG, 2014 WL 1652603,
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`at *2 (E.D. Tex. April 24, 2014). The defendant must do more than show that transferee district
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`is a clearly more convenient venue for it to defend against the plaintiff’s claims; it must show
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`that the transferee district would be “more convenient for both parties involved, non-party
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`witnesses, expert witnesses, and in the interest of justice.” Aloft Media, LLC v. Adobe Sys. Inc.,
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`No. 6:07–CV–355, 2008 WL 819956, at *3 (E.D. Tex. Mar. 25, 2008) (emphasis added); 15
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`Wright, Miller & Cooper, Fed. Practice and Proc. § 3849 (3d ed. 2009) (“[S]ection 1404(a) refers
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`to all of the parties to the action, which means that their frequently competing conveniences must
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`be taken into account by the court. Therefore, transfer will be refused on account of this factor if
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`the effect of a change of venue would be merely to shift the inconvenience from one party to the
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`other.”). If the defendant fails to make this showing, “the plaintiff’s choice [of venue] must be
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`respected.” In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc)
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`(Volkswagen II); see also Gulf Oil Corp. v. Gilbert, 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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`6
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`Case 2:17-cv-00516-JRG Document 57 Filed 12/11/17 Page 11 of 21 PageID #: 632
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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) “the
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`relative ease of access to sources of proof;” (2) “the availability of compulsory process to secure
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`the attendance of witnesses;” (3) “the cost of attendance for willing witnesses;” and (4) “all other
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`practical problems that make a trial case easy, expeditious, and inexpensive.” Id. The public-
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`interest factors include (1) “the administrative difficulties flowing from court congestion;”
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`(2) “the local interest in having localized interests decided at home;” (3) “the familiarity of the
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`forum with the law that will govern the case;” and (4) “the avoidance of unnecessary problems of
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`conflicts of laws.” Id. Plaintiff’s choice of venue is also a relevant consideration. In re
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`Horseshoe Entm’t, 337 F.3d 429, 434 (5th Cir. 2003) (“under Fifth Circuit precedent that the
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`plaintiff’s choice of forum is clearly a factor to be considered” in a transfer of venue analysis).
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`Although not an enumerated factor, “[c]onsideration of the interest of justice, which includes
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`judicial economy, ‘may be determinative to a particular transfer motion, even if the convenience
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`of the parties and witnesses might call for a different result.’” Regents of Univ. of Cal. v. Eli Lilly
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`& Co., 119 F.3d 1559, 1565 (Fed.Cir.1997) (citation mitted). Although this suit could have been
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`brought against Apple in the proposed transferee district, Apple has failed to demonstrate that
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`that district is clearly more convenient.
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`II.
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`The Private Interest Factors All Weigh Strongly Against Transfer
`
`A.
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`Ease of Access to Sources of Proof Weigh Against Transfer
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`
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`Apple contends that its potentially relevant “business records,” including research,
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`development, and marketing materials, financial and sales data, and patent licenses, are all
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`located in or near its headquarters in the Northern District of California, with none in Texas.
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`Motion at 9. This Court has previously recognized that where documents can and will likely be
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`exchanged electronically, this factor does not in fact support transfer. Network-1 Sec. Sols., Inc.
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`7
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`Case 2:17-cv-00516-JRG Document 57 Filed 12/11/17 Page 12 of 21 PageID #: 633
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`v. D-Link Corp., 433 F. Supp. 2d 795, 799 (E.D. Tex. 2006). Apple has not shown that it would
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`be under hardship to produce any of the evidence in this case electronically. In fact, Apple has
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`already produced source code under Local Patent Rule 3-4(a) for inspection at the offices of its
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`attorneys in New York, and has made a large document production available to AGIS
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`electronically. See Rubino Decl., at ¶ 11.
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`Apple’s reliance on Volkswagen II, 545 F.3d at 316, for the proposition that the ease of
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`access to proof remains “meaningful” notwithstanding modern technology, is misleading. In
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`that case, the relevant evidence included the wreckage of an automobile involved in an auto
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`accident. Id. The court analyzed this factor “in light of the distance that documents, or other
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`evidence, must be transported from their existing location to the trial venue.” Because there is
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`no such physical evidence to be transported in this software patent infringement action, this
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`factor does not favor transfer.3
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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 willing witnesses also weighs against transfer. “In considering
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`the availability and convenience of witnesses, a court must concentrate primarily upon the
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`availability and convenience of key witnesses.” Frito-Lay N. Am., Inc. v. Medallion Foods, Inc.,
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`867 F. Supp. 2d 859 (E.D. Tex. 2012), at 870 (emphasis added). “[I]t is the convenience of non-
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`party witnesses, rather than of party witnesses, that is more important and accorded greater
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`3 Apple’s other authority in support of this factor (Motion at 10, n.4) is also distinguishable. In Core
`Wireless Licensing, S.A.R.L. v. Apple, Inc., No. 6:14-cv-751, 2015 WL 11143431, at *4 (E.D. Tex. Aug.
`31, 2015), the Court relied on the specific identification of Apple’s sources of proof which included the
`form and location of its relevant documents. Apple has offered no such evidence here. In Oyster Optics,
`LLC v. Ciena Corp., 2:17-cv-511-JRG, D.I. 28 at 11 (E.D. Tex. Sept. 22, 2017), transfer was granted in
`part because, unlike this case, plaintiff did not identify any evidence located in or accessible from the
`district. Similarly, in Kranos, 2:17-cv-00443-JRG, D.I. 26 at 22, the defendant identified relevant
`documents located in the transferee forum while, unlike this case, no party identified any relevant
`evidence in the current forum. In 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), also unlike this case, multiple defendants were
`headquartered in the proposed transferee district, large numbers of witnesses and identified sources of
`proof were located there, and there were no identified witnesses or evidence in the forum district.
`8
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`

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`Case 2:17-cv-00516-JRG Document 57 Filed 12/11/17 Page 13 of 21 PageID #: 634
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`weight in a transfer of venue analysis.” Id. at 870-71 (emphasis added) (citing Shoemake v.
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`Union Pacific R.R. Co., 233 F. Supp. 2d 828, 832 (E.D. Tex. 2002)). The moving party must
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`“specifically identify key witnesses and outline the substance of their testimony.” Aerielle, Inc.
`
`v. Monster Cable Prod., Inc., No. 206CV382TJW, 2007 WL 951639, at *2 (E.D. Tex. Mar. 26,
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`2007).
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`As described above, AGIS expects its key party witnesses at trial to include Mr. Beyer
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`(Jupiter, Florida), Mr. Seitsema (Austin, Texas), and Sandel Blackwell (Lenexa, Kansas). The
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`Eastern District of Texas is a more convenient venue for each of them than the Northern District
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`of California. Unlike Apple, AGIS is a small business, AGIS’s party witnesses’ absence will
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`create severe hardships to AGIS’s ability to do business while Apple would likely have no such
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`issues if its witnesses were required to travel to Texas to testify. See Rossco Holdings Inc. v. Best
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`W. Int'l Inc., No. H-06-0155, 2006 WL 1007474, at *3 (S.D. Tex. Apr. 18, 2006) (denying
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`transfer where plaintiff’s witnesses and property were in Texas and there was potential hardship
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`to plaintiff which was a small business). The location of AGIS’s key non-party witnesses weighs
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`heavily against transfer as well. Eric Armstrong, AGIS’s consultant, is located in this District,
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`and AGIS’s technical expert, Joseph C. McAlexander, is in nearby in Richardson, Texas. Aloft
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`Media, LLC v. Adobe Sys., 2008 WL 819956, at *5 (E.D. Tex. 2008) (“[A] patent trial often
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`revolves around the strength of expert witness testimony, and many experts are also non-party
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`witnesses.”) (citing Mangosoft Intellectual Property, Inc. v. Skype Techs. SA, 2007 WL 2008899,
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`at *2 (E.D. Tex. July 5, 2007)); Beyer Decl., at ¶ 15; Rubino Decl., at ¶ 12.
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`Apple asserts that transfer is justified, in part, because seven employees whom it
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`unilaterally selected are “believed to have information relevant to this case are located in the
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`Northern District of California,” (Motion at 11) but Apple cannot even confirm that these are
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`9
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`

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`Case 2:17-cv-00516-JRG Document 57 Filed 12/11/17 Page 14 of 21 PageID #: 635
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`actually going to be their witnesses, let alone key witnesses, and does little to outline the
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`substance of their expected testimony. Apple summarily dismisses the notion that there may be
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`potential witnesses in its Austin and Dallas locations who may have relevant information relating
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`to the research, design, development, marketing or sales of the Accused Products. See Rubino
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`Decl., at ¶¶ 9-10. Apple’s motion is silent with respect to willing non-party witnesses. Apple
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`has not met its burden to demonstrate that the convenience of the willing witnesses favors
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`transfer.
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`The cases cited by Apple on this point are inapposite. In Optimum Power Solutions LLC
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`v. Apple, Inc., 794 F. Supp., 2d 696 (E.D. Tex. 2011), this Court found that convenience of the
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`witnesses favored transfer where plaintiff had no employees or documents in Texas. Likewise,
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`in DSS Tech. Mgmt, Inc. v. Apple Inc., No. 6:13cv919, 2014 WL 6847569, at *3 (E.D. Tex. Nov.
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`7, 2014), this factor favored transfer where plaintiff’s “ephemeral contacts” with this District
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`included lack of any personnel or documents in the District when suit was filed and that plaintiff
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`was actually a Delaware corporation with a principal place of business in Virginia. Here, AGIS
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`has an office and a consultant in this District, its sister company has an office in Austin, and its
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`CEO who is a named inventor on its patents, has longstanding business and personal connections
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`to this District. Finally, in Voxpath RS, LLC v. LG Elecs. U.S.A., Inc., No. 2:10-cv-160-JRG,
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`2012 WL 194370, at *4 (E.D. Tex. Jan. 23, 2012), this factor weighed in favor of transfer where
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`nine groups of defendants identified party witnesses located in or near the proposed transferee
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`district, the plaintiff did not identify any witnesses located in the forum district, and non-party
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`witnesses were from other countries. Here, only Apple claims to have witnesses located in the
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`proposed transferee district; AGIS’s witnesses are all in or closer to the Eastern District of Texas.
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`These cases are not comparable and do not require transfer.
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`10
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`Case 2:17-cv-00516-JRG Document 57 Filed 12/11/17 Page 15 of 21 PageID #: 636
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`C.
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`Availability of Compulsory Process Does Not Favor Transfer
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`More third-party witnesses likely to testify in this case reside in or around the Eastern
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`District of Texas than in the Northern District of California. For this reason, this factor weighs
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`against transfer. See PersonalWeb Technologies, LLC v. NEC Corp. of Am., Inc., No. 6:11-CV-
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`655, 2013 WL 9600333, at *4 (E.D. Tex. Mar. 21, 2013). In addition to the non-party witnesses
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`AGIS has identified to establish damages, AGIS will need to rely on evidence from non-parties
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`to determine the market value of the features enabled by the Patents-in-Suit, as well as consumer
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`surveys and marketing information to show demand for particular features. This evidence will
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`come from cellular carriers and phone sellers including AT&T, Sprint, and Verizon. Rubino
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`Decl., at ¶ 13.4 AT&T’s corporate headquarters are in Dallas; Sprint’s headquarters are in
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`Overland, Kansas; and Verizon’s headquarters are in New York. Each of these is substantially
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`closer and more convenient to this District than to the Northern District of California.5
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`Apple points to two potential non-party witnesses, neither of which justify transfer.
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`Daniel Burns is the prosecuting attorney on the Patents-in-Suit whom Apple believes is in Santa
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`Clara, California. Apple has not made any allegation of inequitable conduct that would require
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`his testimony. See Aerielle, Inc., 2007 WL 951639, at *2; Aloft Media, LLC v. Adobe Sys. Inc.,
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`No. 6:07-CV-355, 2008 WL 819956, at *5 (E.D. Tex. Mar. 25, 2008) (defendants failed to
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`identify how potential third-party witness inventors on patents would be important to their case
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`at trial); Frito-Lay N. Am., Inc., 867 F. Supp. 2d at 870. The other witness, Christopher Rice,
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`