Case 2:17-cv-00516-JRG Document 59 Filed 01/02/18 Page 1 of 9 PageID #: 933
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`Civil Action No. 2:17-CV-516-JRG
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`v.
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`APPLE INC.,
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`Defendant.
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`DEFENDANT APPLE’S REPLY IN SUPPORT OF ITS MOTION TO TRANSFER
`VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA
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`Case 2:17-cv-00516-JRG Document 59 Filed 01/02/18 Page 2 of 9 PageID #: 934
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`Documentary Evidence Is Located in Northern California, Not In This District. ...............1
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`Northern California Is More Convenient For Almost Every Willing Witness....................2
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`III. More Than A Dozen Potentially Relevant Third Parties Are In Northern
`California. ............................................................................................................................4
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`IV.
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`V.
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`Transfer Would Promote Judicial Economy........................................................................5
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`The Northern District Of California Has A Strong Local Interest In This Dispute,
`While This District’s Local Interest Is Minimal. .................................................................5
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`i
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`Case 2:17-cv-00516-JRG Document 59 Filed 01/02/18 Page 3 of 9 PageID #: 935
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`AGIS Software Development LLC v. HTC Corp.,
`2:17-cv-00514-JRG (E.D. Tex. Dec. 15, 2017), D.I. 19..................................................... 5
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`Berry v. Pilgrim’s Pride Corp.,
`No. 2:16-CV-409-JRG, 2016 WL 6092701 (E.D. Tex. Oct. 19, 2016).............................. 3
`
`Godo Kaisha IP Bridge 1 v. Xilinx, Inc.,
`No. 2:17-cv-100-JRG-RSP, 2017 WL 4076052 (E.D. Tex. Sep. 14, 2017)....................... 2
`
`IDB Ventures, LLC v. DSW Inc.,
`2:17-cv-00523-JRG (Dec. 18, 2017 E.D. Tex.), D.I. 31..................................................... 5
`
`In re Apple, Inc.,
`581 F. App’x 886 (Fed. Cir. 2014) ..................................................................................... 4
`
`In re Microsoft Corp.,
`630 F.3d 1361 (Fed. Cir. 2011)........................................................................................... 3
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`Optimum Power Solutions LLC v. Apple, Inc.,
`794 F. Supp. 2d 696 (E.D. Tex. 2011)................................................................................ 1
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`Oyster Optics, LLC v. Coriant Am. Inc.,
`No. 2:16-CV-1302, 2017 WL 4225202 (E.D. Tex. Sept. 22, 2017)............................... 1, 5
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`Realtime Data LLC v. Barracuda Networks Inc.,
`No. 6:17-CV-00120-RWS, 2017 WL 4791970 (E.D. Tex. Oct. 24, 2017) .................... 3, 5
`
`Uniloc USA, Inc. v. Apple Inc.,
`2:17-CV-00258-JRG (E.D. Tex. Dec. 22, 2017, D.I. 104 .................................................. 4
`
`ii
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`Case 2:17-cv-00516-JRG Document 59 Filed 01/02/18 Page 4 of 9 PageID #: 936
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`Eight months ago, the Federal Circuit affirmed a verdict of non-infringement against
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`AGIS, Inc. in a case filed in the Southern District of Florida on patents from the same family at
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`issue here, and upheld an assessment of attorneys’ fees. Six months ago, AGIS, Inc. created the
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`Plaintiff in this case (AGIS Software Development LLC, or “AGIS”), purportedly opened an
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`office across the street from the Courthouse, and filed five lawsuits just 20 days later, including
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`this one. AGIS now argues that it has always had “longstanding” ties to this District.
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`Yet it identifies just four such connections:
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`(1) its new Marshall office (which has no
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`employees); (2) one “consultant” (who is irrelevant according to AGIS’s own discovery
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`responses); (3) its paid litigation expert (who has testified across the country); and (4) land
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`owned by its CEO (which has nothing to do with this dispute). This Court and the Federal
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`Circuit have repeatedly transferred cases—like this one—which have no meaningful tie to this
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`District. This case should therefore be transferred to the Northern District of California, where
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`all of Apple’s relevant documents and likely trial witnesses are located, where numerous third
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`parties are located, and which has the most significant local interest in this dispute.
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`I.
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`Documentary Evidence Is Located in Northern California, Not In This District.
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`No dispute exists that the bulk of documentary evidence exists at Apple’s headquarters in
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`Northern California. No relevant sources of proof exist in this District—AGIS identifies none
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`(see D.I. 57 at 7-8), and any such documents would have been moved here just before this
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`lawsuit and therefore irrelevant to the transfer analysis.1 Moreover, AGIS’s argument that this
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`factor is irrelevant lacks merit. This factor weighs in favor of transfer where—as here—no
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`sources of proof exist within this District, even if documents can be produced electronically.2
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`1 Optimum Power Solutions LLC v. Apple, Inc., 794 F. Supp. 2d 696, 701 (E.D. Tex. 2011).
`2 Oyster Optics, LLC v. Coriant Am. Inc., No. 2:16-CV-1302, 2017 WL 4225202, at *5 (E.D.
`Tex. Sep. 22, 2017).
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`Case 2:17-cv-00516-JRG Document 59 Filed 01/02/18 Page 5 of 9 PageID #: 937
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`II.
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`Northern California Is More Convenient For Almost Every Willing Witness.
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`The primary disputes in this case concern Apple’s accused products—how they work,
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`whether they infringe any asserted claims, and any alleged damages.3 The testimony relevant to
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`those issues will largely come from Apple’s potential trial witnesses, seven of whom Apple has
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`specifically identified by name and scope of potential testimony, and all of whom live and work
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`in Northern California. (D.I. 53-1.) AGIS’s arguments to the contrary should be rejected.
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`First, AGIS’s argument that Apple did not reveal the “substance of [its likely witnesses’]
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`testimony” (D.I. 57 at 9-10)—and that their convenience should be disregarded—lacks merit.
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`Apple’s opening brief and supporting declaration outline the specific information that each of its
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`seven potential witnesses would testify about at trial, including the design, development,
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`manufacture and marketing of the accused software, as well as financial and sales information
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`regarding the accused devices. (D.I. 53-1 ¶¶ 8-16.) Requiring a question-and-answer-style
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`outline for each witness nearly a year before trial (as AGIS apparently suggests) is unnecessary.4
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`Second, AGIS baselessly asserts that relevant Apple witnesses may work in Texas. But Apple
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`has investigated and determined that the engineers responsible for developing the accused
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`technology all belong to one of three specific groups within Apple. (Jaynes Reply Decl. ¶ 4.)
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`Only one employee from those groups is located anywhere in Texas, and that employee had no
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`involvement in the design or development of the technology at issue here.
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`(Id.) Third, AGIS
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`identifies six witnesses that it expects to call to trial: Malcolm Beyer (Jupiter, FL); David
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`Sietsema (Austin, TX); Sandel Blackwell (Lenexa, KS); Chris Rice (Redmond, WA);
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`3 AGIS does not contend that any AGIS product practices the asserted claims. (Ex. 1 at 8.)
`4 Godo Kaisha IP Bridge 1 v. Xilinx, Inc., No. 2:17-cv-100-JRG-RSP, 2017 WL 4076052, at *4
`(E.D. Tex. Sep. 14, 2017).
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`2
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`Case 2:17-cv-00516-JRG Document 59 Filed 01/02/18 Page 6 of 9 PageID #: 938
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`“consultant” Eric Armstrong (Allen, TX); and litigation expert Joseph McAlexander.5 (D.I. 57 at
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`9, 11-12.) But none of those witnesses’ locations weighs against transfer:
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`Three “key” witnesses, Chris Rice, Malcolm Beyer and Sandel Blackwell, do not even
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`live in Texas. Mr. Rice, one of the two named inventors on the asserted patents, is located in
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`Redmond, Washington—closer to Northern California than to this District. (Ex. 22 at 14.)6 Mr.
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`Beyer has lived and worked in Florida for three decades. (Ex. 10 ¶ 1; D.I. 57-1.) His contention
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`that this District would be more convenient is entitled to little weight because he will be required
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`to travel a significant distance regardless of whether he testifies here or in California.7 Likewise,
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`Sandel Blackwell resides in Kansas and has no connection to this District. (57-1 ¶ 18; Ex. 10 ¶
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`13.) He willingly traveled to Florida to testify in the AGIS Florida litigation. (Ex. 23 at 3.) Any
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`contention that Mr. Blackwell would be unduly burdened by traveling to California for trial,
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`when he readily traveled from Kansas to testify at trial in Florida, should be rejected.
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`AGIS’s final “key” witness, David Sietsema, likewise does not live in this District. Even
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`if Mr. Sietsema now works in Austin, that is a recent development that deserves little weight in
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`the transfer analysis.8 Moreover, AGIS cannot explain how Mr. Sietsema’s testimony would be
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`relevant to any issue. He did not testify in AGIS’s Florida litigation. (Ex. 23.) And according to
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`its Rule 26 disclosures to Apple, Mr. Sietsema’s knowledge relates to “contracts related to AGIS
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`5 Location of experts is generally given no weight in the transfer analysis. See Berry v. Pilgrim’s
`Pride Corp., No. 2:16-CV-409-JRG, 2016 WL 6092701, at *3 (E.D. Tex. Oct. 19, 2016).
`6 Before Apple filed its transfer brief, AGIS represented in its initial disclosures that it had no
`contact information for Mr. Rice. Now, when faced with a transfer motion, AGIS contends that
`he is an AGIS Inc. employee. (Compare Ex. 13 at 2 with Ex. 22 at 14.)
`7 See Realtime Data LLC v. Barracuda Networks Inc., No. 6:17-CV-00120-RWS, 2017 WL
`4791970, at *3 (E.D. Tex. Oct. 24, 2017).
`8 According to AGIS’s earlier sworn testimony, at least as of 2014, all AGIS, Inc. employees
`(including, presumably, Mr. Sietsema) worked out of offices in Florida or Kansas. (Ex. 10 ¶ 17.)
`Cf. In re Microsoft Corp., 630 F.3d 1361, 1364–65 (Fed. Cir. 2011) (recent contacts with forum
`entitled little weight in transfer analysis).
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`3
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`Case 2:17-cv-00516-JRG Document 59 Filed 01/02/18 Page 7 of 9 PageID #: 939
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`Inc. products”—(Ex. 23 at 15)—but AGIS asserts in discovery that its own products are
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`irrelevant to this case (see Ex. 1 at 8). His testimony, according to AGIS, is therefore irrelevant.
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`AGIS fails to identify any relevant testimony from Eric Armstrong, now an AGIS
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`“consultant” concerning the design and development of AGIS’s products.
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`(D.I. 57 at 5.) As
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`explained above, AGIS does not allege that any of its own products practice the asserted
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`claims—and Armstrong’s testimony, according to AGIS, is therefore also irrelevant.
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`Because Apple has named seven party witnesses in the Northern District of California,
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`while AGIS has identified only one consultant in this District without identifying any testimony
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`he could provide in this case, this factor clearly favors transfer.9
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`III. More Than A Dozen Potentially Relevant Third Parties Are In Northern California.
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`AGIS does not dispute that no independent third parties are located in this District. By
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`contrast, at least the prosecuting attorney of the patents-in-suit (Daniel Burns of Goodwin &
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`Proctor) is located in the Northern District of California. AGIS’s argument that his location
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`should be disregarded because Apple has not pled inequitable conduct (D.I. 57 at 11) should be
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`rejected—AGIS itself, in its Rule 26 initial disclosures, contends that the prosecuting attorneys
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`are likely to have discoverable information. (Ex. 22 at 16.) Moreover, thirteen named inventors
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`of patents relied upon by Apple in its invalidity contentions are located in the Northern District
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`of California. (Exs. 24-34.) The number of potential third-party witnesses in that District—and
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`the lack of any such witnesses here—favors transfer.10
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`AGIS further speculates that Verizon, Sprint, and AT&T (all outside this District, and
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`none of whom AGIS has subpoenaed or identified in its Rule 26 disclosures) could have
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`9 See Uniloc USA, Inc. v. Apple Inc., 2:17-CV-00258-JRG (E.D. Tex. Dec. 22, 2017), D.I. 104 at
`18-19.
`10 See Uniloc, 2:17-CV-00258-JRG, D.I. 104 at 14-15; In re Apple, Inc., 581 F. App’x 886, 889
`(Fed. Cir. 2014).
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`4
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`Case 2:17-cv-00516-JRG Document 59 Filed 01/02/18 Page 8 of 9 PageID #: 940
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`information about the marketing of Apple’s software features.
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`(D.I. 57 at 11.) Apple has
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`investigated and determined that none of those companies has ever pursued or been involved in
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`any marketing relating to the accused Apple features. (Jaynes Reply Decl. ¶ 3.)
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`IV.
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`Transfer Would Promote Judicial Economy.
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`AGIS cites co-pending cases against Huawei, LG, ZTE, and HTC as a basis for denying
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`transfer.
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`(D.I. 57 at 12-13.) But “courts should avoid considering copending cases which
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`currently have, or have had, motions to transfer venue.”11 Huawei, LG, and ZTE have each filed
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`motions to dismiss (for improper venue) and/or motions to transfer to the Northern District of
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`California—a fact AGIS inexplicably omits from its opposition.12 Transferring those cases to the
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`Northern District of California would address AGIS’s purported concern regarding the risk of
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`“duplicative suits in multiple jurisdictions.” (D.I. 57 at 13.) This factor therefore favors transfer.
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`V.
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`The Northern District Of California Has A Strong Local Interest In This Dispute,
`While This District’s Local Interest Is Minimal.
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`All of AGIS’s alleged ties to this District are recent and ephemeral (or irrelevant). It
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`opened its “office in this District” across the Courthouse just days prior to filing suit. (D.I. 57-1
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`¶ 9.)
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`Its heavy reliance on one employee’s family land—as a basis for this District’s local
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`interest in a patent infringement case—highlights the absence of any legitimate connection to
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`this District. The accused products are researched, designed and developed by individuals who
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`all work in Northern California, and that District accordingly has a far stronger local interest in
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`the outcome of the litigation than this District, favoring transfer.13
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`11 Oyster Optics, 2017 WL 4225202, at *7 (citation omitted).
`12 The complaint was only recently served in AGIS’s case against HTC, and no scheduling
`conference or case deadlines have been set in that case. See AGIS Software Development LLC v.
`HTC Corp., 2:17-cv-00514-JRG (E.D. Tex. Dec. 15, 2017) D.I. 19 at 1.
`13 See IDB Ventures, LLC v. DSW Inc., 2:17-cv-00523-JRG (E.D. Tex. Dec. 18, 2017), D.I. 31 at
`4; Realtime Data, 2017 WL 4791970, at *4-5.
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`5
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`Case 2:17-cv-00516-JRG Document 59 Filed 01/02/18 Page 9 of 9 PageID #: 941
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`Dated: January 2, 2018
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`By:
`
`/s/ Melissa R. Smith
`
`Melissa Richards Smith
`State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Ave.
`Marshall, TX 75670
`Tel: (903) 934-8450
`Fax: (903) 934-9257
`melissa@gillamsmithlaw.com
`
`John M. Desmarais
`Michael P. Stadnick
`Ameet A. Modi
`Kerri-Ann Limbeek
`Brian Matty
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`Telephone: (212) 351-3400
`Facsimile: (212) 351-3401
`Email: jdesmarais@desmaraisllp.com
`Email: mstadnick@desmaraisllp.com
`Email: amodi@desmaraisllp.com
`Email: klimbeek@desmaraisllp.com
`Email: bmatty@desmaraisllp.com
`
`Attorneys for Defendant Apple Inc.
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically in
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`compliance with Local Rule CV-5(a) on January 2, 2018. As such, this document was served on
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`all counsel who are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A).
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`6
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`