Case 2:17-cv-00676-RWS-RSP Document 155 Filed 09/26/18 Page 1 of 12 PageID #: 7391
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`GODO KAISHA IP BRIDGE 1,
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`Plaintiff,
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`Case No. 2:17-cv-00676-RWS-RSP
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`v.
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`INTEL CORPORATION,
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`Defendant.
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` JURY TRIAL DEMANDED
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`IP BRIDGE’S RESPONSE TO INTEL’S OBJECTIONS TO THE REPORT AND
`RECOMMENDATION ON INTEL’S MOTION TO DISMISS FOR IMPROPER VENUE
`OR, IN THE ALTERNATIVE, TO TRANSFER TO THE DISTRICT OF OREGON
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`Case 2:17-cv-00676-RWS-RSP Document 155 Filed 09/26/18 Page 2 of 12 PageID #: 7392
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`TABLE OF CONTENTS
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`I.
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`INTRODUCTION .............................................................................................................. 1
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`Page
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`II.
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`PROCEDURAL HISTORY................................................................................................ 1
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`A.
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`The Present Case ..................................................................................................... 1
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`B.
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`Intel’s Collateral Attack on the R&R to the Federal Circuit .................................. 2
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`III.
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`THIS COURT SHOULD ADOPT THE REPORT & RECOMMENDATION’S
`DETERMINATION THAT VENUE IS PROPER UNDER §1400(B) ............................. 2
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`A.
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`Magistrate Judge Payne Correctly Determined that Intel’s Richardson
`Facility—Operating as an Intel Facility in this District for Over Two Years—
`Was a Regular and Established Place of Business of Intel at the Time the
`Complaint Was Filed .............................................................................................. 2
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`B.
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`Intel Improperly Raises a New Nexus Argument That it Waived by Failing to
`Raise it in its Briefing Before Magistrate Judge Payne .......................................... 4
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`IV.
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`INTEL HAS NOT SHOWN THAT MAGISTRATE JUDGE PAYNE CLEARLY
`ERRED OR ACTED CONTRARY TO LAW IN FINDING THE DISTRICT OF
`OREGON NOT CLEARLY MORE CONVENIENT THAN THIS DISTRICT ............... 6
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`A.
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`The R&R Properly Weighed The Cost Of Attendance For Witnesses ................... 6
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`B.
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`The R&R Properly Weighed The Presence Of Sources Of Proof .......................... 7
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`C.
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`The R&R Properly Weighed Judicial Economy ..................................................... 8
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`V.
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`CONCLUSION ................................................................................................................... 8
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`i
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`I.
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`INTRODUCTION
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`Plaintiff Godo Kaisha IP Bridge 1 (“IP Bridge”) respectfully responds to Defendant Intel
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`Corporation’s (“Intel”) Objections to Magistrate Judge Payne’s Report and Recommendation
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`regarding venue (“R&R”).
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`Intel’s Objections represent its second flawed attack on Magistrate Judge Payne’s R&R.
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`Prior to filing these Objection, Intel submitted a purported “amicus” brief to the Federal Circuit in
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`another case in which Intel argued that the R&R here should be overturned. In both that “amicus”
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`brief and in its Objections here, Intel mischaracterizes the R&R and the factual record on Intel’s
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`§1400(b) motion to dismiss. Furthermore, in both that “amicus” brief and its Objections here, Intel
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`raises “nexus” arguments for the first time. Because Intel did not raise those arguments in its
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`underlying motion, they are waived. But regardless of Intel’s mischaracterizations and improper
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`new arguments, Intel cannot avoid venue here when it operated a physical Intel office in
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`Richardson, TX at the time the suit was filed, and for over two years prior. The facts—including
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`that Intel sold Intel products from that Richardson office, placed Intel signage on it, and held out
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`that Richardson office on Intel’s websites as an Intel place of business even as of the hearing on
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`Intel’s motion—are fatal to Intel’s Objections.
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`Finally, regarding the portion of Intel’s Objections addressing Intel’s alternative §1404(a)
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`motion to transfer venue, Intel fails to meet its extraordinarily high standard of showing that the
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`well-reasoned R&R was clearly erroneous or contrary to law.
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`II.
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`PROCEDURAL HISTORY
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`A.
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`The Present Case
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`Intel filed the underlying motion on December 7, 2017. Based on the motion’s allegations,
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`IP Bridge took certain venue discovery and uncovered more about Intel’s presence in this District.
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`IP Bridge filed its sur-reply to Intel’s motion on March 22, 2018. Dkt. 67. Intel then delayed
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`RESPONSE TO OBJECTIONS TO THE REPORT AND RECOMMENDATION ON MOTION TO DISMISS – Page 1
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`nearly two months, until May 11, to request a hearing. Dkt. 83. A hearing was held on August 8,
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`2018 and Magistrate Judge Payne’s R&R issued on August 20, 2018. Dkt 123, Dkt. 131.
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`This case has now progressed far. Fact discovery closes on September 28, and opening
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`expert reports are due on October 9, 2018. Magistrate Judge Payne has issued claim construction
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`rulings and ruled on discovery and disclosure related motions.
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`B.
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`Intel’s Collateral Attack on the R&R to the Federal Circuit
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`On September 11, 2018, one day before it filed its Objections, Intel submitted to the Federal
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`Circuit an “amicus” brief in connection with a mandamus petition in another case. Intel asserted
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`that “a favorable outcome” on that mandamus petition “would likely require” reversal of
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`Magistrate Judge Payne’s R&R here. See Palmieri Decl., Ex. A at 6. Since the facts in that case
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`are unlike the facts here, a ruling in favor of petitioner there will have no impact here—despite
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`Intel’s misleading assertion to the contrary. More troubling, however, is that Intel’s collateral
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`attack to the Federal Circuit, made without notice to IP Bridge or this Court, mischaracterizes the
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`R&R, omits key facts, and urges new arguments that Intel did not raise here and thus waived. IP
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`Bridge raised these issues with Intel’s counsel when it learned of Intel’s ex parte filing, and
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`requested that Intel correct the record, but Intel refused. Id., Ex. B.
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`III. THIS COURT SHOULD ADOPT THE REPORT & RECOMMENDATION’S
`DETERMINATION THAT VENUE IS PROPER UNDER §1400(b)
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`A. Magistrate Judge Payne Correctly Determined that Intel’s Richardson
`Facility—Operating as an Intel Facility in this District for Over Two Years—
`Was a Regular and Established Place of Business of Intel at the Time the
`Complaint Was Filed
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`Intel’s Objections present a misleading account of its presence in this District and the
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`findings of the R&R by omitting and mischaracterizing key facts relevant to Intel’s motion (as it
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`did in its “amicus” brief). Despite Intel’s portrayal of the Richardson office as an Altera facility,
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`it is undisputed that once Intel acquired Altera, that Richardson office became an Intel facility.
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`RESPONSE TO OBJECTIONS TO THE REPORT AND RECOMMENDATION ON MOTION TO DISMISS – Page 2
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`Intel installed Intel signage on the building, advertised for Intel jobs there, and listed that
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`Richardson office as an Intel office on Intel’s public websites—and continued to do so even as of
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`the hearing on Intel’s motion, nearly one year after the suit was filed. See Dkt. 52 at 5; Palmieri
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`Decl., Ex. C. Indeed, Intel’s own declarant from the Richardson office stated that she is an
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`employee of Intel Corporation, not of Altera. Dkt. 21, Guesner Decl., ¶3. She also stated in her
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`declaration that, “[a]fter the acquisition, the role of the Richardson office remained the same and
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`remains the same to this day.” Id., ¶4. Intel continued to operate out of the Richardson office for
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`months after this suit was filed, and continued to tout Intel’s presence there for many more. Dkt.
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`52 at 5. Moreover, Intel maintained a lease on the Richardson facility through February 28, 2018
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`and resigned the lease several months after acquiring Altera. Dkt. 59, Ex 83.
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` As Magistrate Judge Payne correctly determined—these facts meet all the requirements
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`for proper venue. The “regular and established” requirement of In re Cray does not require
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`indefinite permanence nor does it consider the defendant’s alleged non-public intent to abandon a
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`place of business sometime later. See Dkt. 64 at 2.
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`Cray is replete with examples supporting the R&R’s determination that “indefinite
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`permanence” is not required. First, Cray explains that “while a business can certainly move its
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`location, it must for a meaningful time period be stable, established.” In re Cray, 871 F.3d 1355,
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`1363 (Fed. Cir. 2017). Moreover, Cray further describes the need for only “sufficient permanence.”
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`Id. Indeed, Cray’s contemplation of varying degrees of permanence and its explicit recognition
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`that a business “can certainly move its location” unquestionably support the R&R’s conclusion
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`that “regular and established” business need not exist in perpetuity for § 1400.
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`The R&R also properly determined that whether Intel intended to vacate its Richardson
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`facility sometime later is irrelevant to § 1400(b). Intel’s sole argument to the contrary relies on a
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`RESPONSE TO OBJECTIONS TO THE REPORT AND RECOMMENDATION ON MOTION TO DISMISS – Page 3
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`misstatement of the Federal Circuit’s discussion of “intent” in Cray. Cray discusses a party’s
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`“intent” as it relates to the determining whether a location is “of the defendant”— not in
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`determining whether a business is “regular and established.” There, the Court analyzed whether
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`the unilateral acts of a work-from-home employee should be imputed to the defendant for the
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`purposes of the determining whether that location was “of the defendant.” See In re Cray, 871
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`F.3d 1355, at 1365 Moreover, Intel misrepresents Magistrate Judge Payne’s determination by
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`selectively quoting the R&R. As the R&R correctly states—§1400 does not “consider a
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`defendant’s intent to abandon a place of business sometime later.” R&R at 6 (emphasis added).
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`Nowhere in Cray does the Federal Circuit suggest that a defendant’s intended (and non-public)
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`future actions are relevant to the venue inquiry.1
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`Intel mischaracterizes Magistrate Judge Payne’s reasoning in other ways too. The R&R
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`did not, as Intel suggests, find venue proper because “an acquired subsidiary’s facility immediately
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`and automatically transforms into a ‘regular and established place of business’ under §1400(b).”
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`Objs. at 2. Rather, as clearly explained in the R&R, venue is proper here because the Richardson
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`office was a “longstanding physical location in this District from which Intel carried out its regular
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`business and product sales.” R&R at 6.
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`B.
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`Intel Improperly Raises a New Nexus Argument That it Waived by Failing to
`Raise it in its Briefing Before Magistrate Judge Payne
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`In its Objections, Intel improperly argues for the first time here that there is “nexus”
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`required between the “regular and established place of business” in the District and the infringing
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`1 Intel’s legal arguments are as flawed as its factual ones. Intel omits the fact that it did not plan
`to leave this District until nearly 18 months after acquiring Altera. Dkt. 64 at 4. Intel originally
`planned to consolidate the Richardson facility into its Plano facility located within this District.
`Id. After Intel cancelled that planned move (showing that intent is different than action), Intel did
`not again plan to move the Richardson facility until 10 months later, in June of 2017. Id. There
`is no evidence that Intel intended to move during that 10 month gap—which is fatal to Intel’s
`(legally irrelevant) argument that it always had intended to close the Richardson facility.
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`RESPONSE TO OBJECTIONS TO THE REPORT AND RECOMMENDATION ON MOTION TO DISMISS – Page 4
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`activities in this District. Objs. at 4-5. Because Intel did not raise this argument in its underlying
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`motion before Magistrate Judge Payne, it is waived. See epicRealm, Licensing, LLC v. Autoflex
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`Leasing, Inc., 492 F. Supp. 2d 608, 613 (E.D. Tex. 2007) (“The Fifth Circuit has held that issues
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`raised for the first time in objections to a Report and Recommendation of a magistrate judge are
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`not properly before the district judge.”) (citation omitted). 2 Had Intel raised that argument
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`previously, IP Bridge could and would have taken discovery regarding Intel’s supposed lack of
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`nexus. Notably, Intel has submitted no affirmative evidence regarding any such lack of nexus.
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`Furthermore, Intel’s new argument is contrary to the prevailing law in this District and
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`others. Indeed, in its briefs on Intel’s underlying motion, IP Bridge cited decisions from this
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`District and others declining to read a “nexus requirement” into § 1400(b). Dkt. 52 at 11. Intel’s
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`new (waived) nexus argument cannot be squared with this District’s case law as well as that of
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`other districts, nor does it find support in Federal Circuit precedent.3
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`Intel has failed to demonstrate that the R&R is inconsistent with either the facts or the
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`prevailing law. In attempting to undermine Magistrate Judge Payne’s well reasoned analysis, Intel
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`repeatedly misrepresents the findings of the R&R, creates a distorted and misleading view of the
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`facts, and reads into Cray requirements that are unsupported by any authority. Accordingly, this
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`Court should adopt the R&R.
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`2 Indeed, Intel did not raise that argument even though IP Bridge specifically argued, based on the
`prevailing case law, that it is irrelevant whether the accused products were sold through Intel’s
`Richardson facility. See Dkt. 52 at 15 n.7. Intel never argued otherwise.
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`3 Intel attempts to create the false impression that Magistrate Judge Payne’s statement that IP
`Bridge had not “established any particular connection to this District” was made in connection
`with Intel’s § 1400(b) Motion to Dismiss. In actuality, this statement was made in the connection
`with Magistrate Judge Payne’s analysis of the “local interest factor” with respect to Intel’s
`alternative § 1404(a) motion to transfer. The R&R’s assessment of whether IP Bridge established
`a connection between itself and this District for purposes of an entirely different motion is wholly
`unrelated to the question of proper venue.
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`RESPONSE TO OBJECTIONS TO THE REPORT AND RECOMMENDATION ON MOTION TO DISMISS – Page 5
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`IV.
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`INTEL HAS NOT SHOWN THAT MAGISTRATE JUDGE PAYNE CLEARLY
`ERRED OR ACTED CONTRARY TO LAW IN FINDING THE DISTRICT OF
`OREGON NOT CLEARLY MORE CONVENIENT THAN THIS DISTRICT
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`Magistrate Judge Payne carefully weighed the evidence on Intel’s alternative §1404(a)
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`motion to transfer and found that Intel failed to meet its high burden of showing that its proposed
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`transferee venue is clearly more convenient than this one. The R&R’s analysis and conclusions
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`are properly supported by both the evidence and the law. Intel has not met its burden of showing
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`that the R&R is clearly erroneous or contrary to law.4
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`A.
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`The R&R Properly Weighed The Cost Of Attendance For Witnesses
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`The R&R accorded third party witnesses the proper weight in determining that the cost of
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`attendance for willing witnesses “weighs somewhat against transfer.” R&R at 14. The relevant
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`third party witnesses that IP Bridge identified are not “generic;” IP Bridge identified numerous
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`third parties by name, the vast majority of which are closer to this district, and described their
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`relevance to the suit. See Dkt. No. 52 at 18. Intel relies upon inapposite cases where a party failed
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`to identify specific persons as party witnesses, and improperly attempts to place on IP Bridge a
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`requirement to name specific persons employed by the properly disclosed non-parties. See Objs.
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`at 6-7. Further, Intel’s assertion that IP Bridge identified no relevant third parties by name is
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`simply false, see id., and its suggestion that IP Bridge will not call any of those witnesses at trial
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`is mere speculation. See Objs. at 6. Case preparations and discovery are ongoing, and case
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`4 An R&R on a non-dispositive motion should not be modified or set aside unless it is “clearly
`erroneous or contrary to the law.” Fed. R. Civ. P. 72(a). Intel’s Objections addresses only three
`of the eight factors that Magistrate Judge Payne weighed, and ascribes no error to the analysis or
`balancing of those other five factors, which when weighed showed that Intel failed to meet its
`burden of demonstrating that D. Oregon is clearly more convenient. See Objs. at 5-8. Thus, even
`if Intel’s Objections had any merit—and they do not—still Intel would have failed to provide any
`basis for overruling Magistrate Judge Payne’s R&R on Intel’s alternative motion to transfer, which
`carefully balanced all relevant factors.
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`RESPONSE TO OBJECTIONS TO THE REPORT AND RECOMMENDATION ON MOTION TO DISMISS – Page 6
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`developments may necessitate calling as witnesses any of the identified third parties.5 Furthermore,
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`Intel’s focus on developments in discovery ignores the fact that motions to transfer venue are to
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`be assessed as of the filing of suit. See In re EMC Corp., 501 Fed. Appx. 973, 976 (Fed. Cir. 2013)
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`(“[m]otions to transfer venue are to be decided based on ‘the situation which existed when suit
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`was instituted”) (quoting Hoffman v. Blaski, 363 U.S. 335, 343 (1960)).
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`Intel also mischaracterizes the R&R in an effort to manufacture legal error. Despite Intel’s
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`misuse of quotation marks, nowhere does the R&R “state[] as a legal principle that [the] transfer
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`legal analysis should not consider ‘at this point’ the likelihood of witnesses actually being call to
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`testify.” See Objs. at 6 (quoting R&R at 12). Rather, the R&R properly states that “[t]he court
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`should consider all material and relevant witnesses, regardless of their being called to testify at
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`trial” and cites In re Genentech for that proposition. See R&R at 12. Finally, Intel asserts without
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`citation that the R&R gave Intel’s purported witnesses less weight than identified third party
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`witnesses. Objs. at 7. The R&R did no such thing—and even if it did, Intel has not shown that to
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`be clearly erroneous or contrary to law. Cf. ContentGuard Holdings, Inc. v. Amazon.com, Inc.,
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`No. 2:13-cv-1112-JRG, 2015 WL 1885256, at *8 (E.D. Tex. April 23, 2015) (“[I]t is the
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`convenience of non-party witnesses that is the more important factor and is accorded greater
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`weight in a transfer of venue analysis.”).
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`B.
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`The R&R Properly Weighed The Presence Of Sources Of Proof
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`Despite Intel’s cries of “unrequited evidence” in Oregon, see Objs. at 7, the R&R found
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`that a “substantial part of the documents at issue . . . are closer to Oregon than to this District” and
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`held that this factor favors transfer. R&R at 10. However, given that the majority of critical
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`technical documents are also available at Intel’s Arizona and New Mexico fabs (such as process
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`5 Indeed, IP Bridge has subpoenaed three of those third parties, each of whom is closer to the
`Eastern District of Texas than the District of Oregon. Palmieri Decl., ¶¶8-10.
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`RESPONSE TO OBJECTIONS TO THE REPORT AND RECOMMENDATION ON MOTION TO DISMISS – Page 7
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`recipes, layout files, design rules, and yield data),6 the R&R appropriately found that the scattered
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`presence of these documents “lessens the weight of the factor.” R&R at 10. Additionally, the
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`R&R correctly attributes weight to the fact that Intel’s largest customer, Dell, is located in Texas
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`as are other sources of third party evidence, such as Texas Instruments, NXP, and AMD. Id.
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`Accordingly, Intel cannot show that the R&R clearly erred in assessing the weight of this factor.
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`C.
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`The R&R Properly Weighed Judicial Economy
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`Intel again mischaracterizes the R&R—nowhere did Magistrate Judge Payne hold that the
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`“overlap of two of nine patents-in-suit . . . override[s] that Oregon is clearly more convenient.”
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`See Objs. at 8. As an initial matter, even apart from this factor, Intel failed to show that Oregon is
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`clearly more convenient—thus there could be none of the “overrid[ing]” that Intel attempts to
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`ascribe to the R&R. Moreover, the R&R properly considered the overlap of issues from the prior
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`Broadcom suit, and determined that this Court’s consequent familiarity with the complex
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`technology of this suit is just one factor weighing against transfer. Indeed, contrary to Intel’s
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`argument, the R&R expressly noted that this factor alone is not sufficient to deny transfer. R&R
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`at 16. Intel fails to demonstrate that the R&R clearly erred in assessing or weighing this factor.
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`V.
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`CONCLUSION
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`For these reasons, IP Bridge respectfully requests that this Court overrule Intel’s Objections
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`and adopt Magistrate Judge Payne’s R&R.
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`6 Intel incorrectly asserts that only “test results” are available at the Arizona and New Mexico fabs.
`Objs. at 8. The evidence demonstrates otherwise. See Dkt. No. 52 at 20-21.
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`RESPONSE TO OBJECTIONS TO THE REPORT AND RECOMMENDATION ON MOTION TO DISMISS – Page 8
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`Respectfully submitted,
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`/s/ Jennifer H. Doan
`Jennifer H Doan
`State Bar No. 08809050
`Joshua R. Thane
`State Bar No. 24060713
`J. Randy Roeser
`Texas Bar No. 24089377
`Kyle R. Akin
`Texas Bar No. 24105422
`HALTOM & DOAN
`6500 Summerhill Road, Suite 100
`Texarkana, Texas 75503
`Telephone: (903) 255-1000
`Facsimile: (903) 255-0800
`Email: jdoan@haltomdoan.com
`Email: jthane@haltomdoan.com
`Email: rroeser@haltomdoan.com
`Email: kakin@haltomdoan.com
`
`James R. Batchelder
`(CA Bar. 136347)
`(Eastern District of Texas Member)
`Andrew N. Thomases
`(CA Bar No. 177339)
`(Eastern District of Texas Member)
`Andrew T. Radsch
`(CA Bar No. 303665)
`(Eastern District of Texas Member)
`Christopher M. Bonny
`(CA Bar No. 280554)
`(Eastern District of Texas Member)
`Joseph B. Palmieri
`(CA Bar No. 312725)
`(Eastern District of Texas Member)
`ROPES & GRAY LLP
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303-2284
`Telephone: (650) 617-4000
`Facsimile: (650) 617-4090
`james.batchelder@ropesgray.com
`andrew.thomases@ropesgray.com
`andrew.radsch@ropesgray.com
`christopher.bonny@ropesgray.com
`joseph.palmieri@ropesgray.com
`
`RESPONSE TO OBJECTIONS TO THE REPORT AND RECOMMENDATION ON MOTION TO DISMISS – Page 9
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`Alexander E. Middleton
`(Eastern District of Texas Member)
`ROPES & GRAY LLP
`1211 Avenue of the Americas
`New York, NY 10036
`Telephone: (212) 596-9000
`Facsimile: (212) 596-9090
`alexander.middleton@ropesgray.com
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`ATTORNEYS FOR GODO KAISHA IP
`BRIDGE 1
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically in
`compliance with Local Rule CV-5(a). Pursuant to Local Rule CV-5(c), all counsel of record were
`served a true and correct copy of the foregoing document by electronic mail on this the 26th day of
`September, 2018.
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`/s/ Jennifer H. Doan
`Jennifer H. Doan
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`RESPONSE TO OBJECTIONS TO THE REPORT AND RECOMMENDATION ON MOTION TO DISMISS – Page 10
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