Case 2:19-cv-00118-JRG Document 43 Filed 08/09/19 Page 1 of 8 PageID #: 457
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`§§§
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`§§
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`§§§
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`C.A. No. 2:19-cv-00118-JRG
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`JURY TRIAL DEMANDED
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`QUEST NETTECH CORPORATION,
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`v.
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`APPLE INC.,
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`Plaintiff,
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`Defendant.
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`APPLE INC.’S REPLY TO QUEST NETTECH CORPORATION’S OPPOSITION
`TO APPLE INC.’S MOTION TO TRANSFER VENUE UNDER 28 U.S.C. § 1404(a)
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`

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`Case 2:19-cv-00118-JRG Document 43 Filed 08/09/19 Page 2 of 8 PageID #: 458
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`TABLE OF CONTENTS
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`Page
`Apple’s Austin Presence is Irrelevant. .............................................................................1
`A.
`Apple’s General Presence in Austin is Irrelevant. ...................................................1
`B.
`NetTech is Mistaken About Apple’s Employees in Austin. ....................................2
`NetTech’s Own Witnesses are Not in EDTX. ..................................................................3
`The Convenience and Availability of Third-Party Witnesses Clearly Favors
`Transfer. .............................................................................................................................4
`A.
`The Sole Inventor is in Northern California. ...........................................................4
`B.
`The Bank Office NetTech Identifies are Irrelevant to the Transfer
`Analysis....................................................................................................................4
`CONCLUSION ..................................................................................................................5
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`I.
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`II.
`III.
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`IV.
`
`i
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`

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`Case 2:19-cv-00118-JRG Document 43 Filed 08/09/19 Page 3 of 8 PageID #: 459
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`NetTech’s Opposition (Dkt. 33) is based on demonstrably incorrect assertions about the
`locations of nonparty and party sources of evidence and an incorrect understanding of the
`applicable law. When the correct legal standard is applied to the actual facts, NDCA is clearly the
`more convenient venue and the case should be transferred there.
`
`I.
`
`APPLE’S AUSTIN PRESENCE IS IRRELEVANT.
`But for the case caption, one might mistakenly believe that this case had been filed in the
`Western District of Texas (WDTX) given the extensive discussion of Austin in NetTech’s
`Opposition. See, e.g., Opp. at 1, 4, 6, and 11. NetTech’s repeated references to Austin do not
`somehow make Apple’s activities there relevant to the transfer analysis in this case. NetTech is
`mistaken on both the law and the facts related to Apple’s Austin activities. On the law, NetTech
`is incorrect that Apple’s general presence in Austin bears on the transfer analysis at all. And on
`the facts, NetTech is mistaken about the relevance of the Apple employees it identifies in Austin.
`
`Apple’s General Presence in Austin is Irrelevant.
`A.
`Lacking any meaningful ties or connections to the Eastern District of Texas (EDTX),
`NetTech argues that the Court should consider Apple’s activities in the “surrounding areas” and
`emphasizes that “Apple houses its largest campus outside of its California headquarters in Austin,
`Texas.” Opp. at 1; see also id. at 4, 6, 11. Yes, Apple has a large campus and general presence in
`Austin. No, that campus is not relevant to the transfer analysis.
`As an initial matter, Austin is not in EDTX1 and, by NetTech’s own admission, is nearly
`“300 miles from this District.” Opp. at 6. In any event, the same argument that NetTech presses
`here—that Apple’s general presence and campus in Austin favors keeping the case in EDTX—has
`been squarely rejected by this Court. In PersonalWeb Techs., LLC v. Apple, Inc., the plaintiff
`“point[ed] to Apple’s 3,500-employee operations center in Austin” as a reason to maintain the case
`in EDTX. Order at 20-21, No. 6:12-CV-660-LED (E.D. Tex. Feb. 12, 2014). The plaintiff further
`
`1 Even if Apple’s Austin campus were in EDTX, it would still be irrelevant. See Uniloc USA, Inc.
`et al. v. Apple, Inc., No. 18-CV-0164-LY, Dkt. 52 at 2 and 4-6 (W.D. Tex., Mar. 28, 2019)
`(transferring WDTX case to NDCA and finding that private interest factors (ease of proof and
`attendance of willing witnesses) favored transfer notwithstanding Apple’s WDTX presence).
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`1
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`argued that Apple’s “sworn declaration that the Austin facility was not involved in the design or
`development of the accused products” was “insufficient evidence to show there are no sources of
`proof in Austin.” Id. at 21. This Court disagreed, stating that “the Court will not consider Apple’s
`Austin office” in the transfer analysis. Id. Here, too, Apple has submitted sworn declarations from
`its Finance Manager, Michael Jaynes, stating that Apple’s Austin facility is not involved in the
`design or development of Apple Pay. See Dkt. 20-1 (Dec. of M. Jaynes in support of Apple’s
`Transfer Motion). This testimony stands unrebutted, but for NetTech’s conjecture about four
`Apple employees in Austin which is addressed below.
`
`NetTech is Mistaken About Apple’s Employees in Austin.
`B.
`Ignoring the five Apple employees specifically identified in Apple’s motion2 and the
`accompanying declaration describing their roles and responsibilities vis-à-vis the design,
`development, implementation, and marketing of the Accused Technology, NetTech speculates that
`four Austin-based Apple employees are “likely knowledgeable” about Apple Pay. Opp. at 1.
`Especially when considering that the relevant timeframe is from October 2014 (when Apple Pay
`was first released) to September 2015 (when the Asserted Patent expired), NetTech’s attempt to
`paint Apple as having four relevant witnesses in EDTX completely backfires, as demonstrated by
`the very LinkedIn profiles attached to NetTech’s Opposition. See Opp. Exs. 1-4.
` Christine McGarvey was a graduate student and intern at a foods company in
`Denver during much of the relevant time period. Opp. Ex. 3 at 1. Ms. McGarvey
`joined Apple in August 2015 (one month before the patent expired) as a member
`of the AppleCare organization, which provides customer support. Id.; Supp. Jaynes
`Dec., ¶¶4-6, 9. She has confirmed that she has had no involvement in the design,
`development, implementation, or marketing of Apple Pay. Id., ¶9.
` Claire Bradshaw is a Team Manager in the AppleCare organization and has
`worked in supervisory roles in that organization since joining Apple in 2011. Opp.
`Ex. 2 at 1. Supp. Jaynes Dec., ¶¶4-6, 8. Ms. Bradshaw has confirmed that she has
`had no involvement in the design, development, implementation, or marketing of
`Apple Pay. Id., ¶8.
` Mark Bennett is a Quality Program Manager in the AppleCare organization and
`
`2 The fact that Apple specifically identified its witnesses and explained their roles distinguishes
`the Core Wireless case cited by NetTech. See Opp. at 5 (discussing Core Wireless Licensing,
`S.A.R.L. v. Apple Inc., No. 6:12-cv-100-LED-JDL, 2013 WL 682849 (E.D. Tex. Feb. 22, 2013)).
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`2
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`has worked in that organization since 2008. Opp. Ex. 1 at 1; Supp. Jaynes Dec.
`¶¶4-7. Mr. Bennett has confirmed that he has had no involvement in the design,
`development, implementation, or marketing of Apple Pay. Id., ¶7.
` Jack Senyard was a logistics coordinator at an energy company during the majority
`of the relevant time period. Opp. Ex. 4 at 1. Mr. Senyard was employed by a
`staffing agency which first placed him at Apple in April 2015, and he did not join
`Apple until August 2016 (a year after the patent expired). Supp. Jaynes Dec. ¶¶4-
`6, 10. He was, and still is, a data analyst on a fraud prevention team, and he has
`confirmed that he has had no involvement in the design, development,
`implementation, or marketing of Apple Pay. Id., ¶10.
`
`Not only are none of these individuals located in EDTX, none of them have knowledge
`relevant to this litigation. Accordingly, the “ease of access” and “cost of attendance” private
`interest factors strongly favor transfer.3
`
`II.
`
`NETTECH’S OWN WITNESSES ARE NOT IN EDTX.
`Notwithstanding NetTech’s claim that its principal place of business is in Marshall,
`NetTech fails to identify a single witness in the state of Texas. Opp. at 2-3. Moreover, NetTech
`does not dispute that the Asserted Patent was owned by New York-based Wynn Technologies,
`Inc.—a sister company to NetTech—from November 29, 2000 until April 11, 2019. The “merger”
`of Wynn Technologies (whose sole asset is the Asserted Patent) with NetTech the day before filing
`suit is a transparent attempt to manipulate venue. Mot. at 4; Dkt. 20-3 at 11 (Annual Report stating
`“[t]he sole asset of Wynn Technologies Inc. is U.S. Pat. No. RE38,137”).
`NetTech admits that Mr. Scahill—the only “primary witness” NetTech identifies—does
`not reside in Texas, but in New York. Opp. at 2. Lacking a single identifiable witness in Texas,
`NetTech argues that Mr. Scahill is located “much closer to [EDTX] than [NDCA].” Id. Likewise,
`NetTech identifies several other witnesses in New York (but none in Texas) and argues that their
`“presence in New York weighs against transfer because New York is far closer to Marshall, Texas
`than to [NDCA].” id. at 9; see also id. at 3. But equating distance with convenience misstates the
`
`3 Without providing any details, NetTech also argues that litigating in EDTX cannot be
`inconvenient for Apple and its witnesses because Apple did not move to transfer two other EDTX
`cases. Opp. at 1-2. This argument is meritless and NetTech tacitly admits as much by
`acknowledging elsewhere in its Opposition that the court must “weigh a number of case-specific
`factors based on the individualized facts on record.” Opp. at 15.
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`3
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`Case 2:19-cv-00118-JRG Document 43 Filed 08/09/19 Page 6 of 8 PageID #: 462
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`test. See Zenith Elecs. LLC v. Sony Corp., No. 5:10-CV-184-DF, 2011 U.S. Dist. LEXIS 102242,
`at *24 (E.D. Tex. Apr. 25, 2011) (“[T]he existence or non-existence of direct flights can impact
`the analysis of travel time” and “regardless of the ‘straight line’ distances…if ‘travel time’
`distances favor the proposed venue, then this factor will favor transfer.”). When considering flight
`availability, total travel time, and convenience, NDCA is clearly the more convenient venue, even
`for New Yorkers. Compare Ex. 7 and Ex. 8.
`The closest NetTech comes to having an EDTX presence is “retain[ing] counsel in this
`District.” Opp. at 2. But this cannot be the test. Allowing the mere acting of hiring a lawyer in
`the state of Texas to drive the transfer analysis in any meaningful way would create a loophole
`that swallows the rule protecting defendants from litigating in clearly inconvenient venues.
`
`III.
`
`THE CONVENIENCE AND AVAILABILITY OF THIRD-PARTY WITNESSES
`CLEARLY FAVORS TRANSFER.
`A.
`The Sole Inventor is in Northern California.
`NetTech admits that the sole named inventor (Mr. Sol Wynn) resides in northern
`California. Opp. at 3. To neutralize the fact that this important third-party witness is only subject
`to compulsory process in California, NetTech avers that Mr. Wynn would be willing to travel to
`Texas. Opp. at 3. But this does not subject Mr. Wynn to compulsory process in the event he
`simply changes his mind or NetTech decides not to call him at trial. Apple could only compel Mr.
`Wynn to testify at trial in California. And even where California-based inventors “have
`volunteered to travel to Texas to attend trial [and declared that] live appearances will not be
`inconvenient,” this Court has held that the cost of attendance for such witnesses “weighs in favor
`of transfer.” ContentGuard Holdings, Inc. v. Amazon.com, Inc., 2015 U.S. Dist. LEXIS 53687, at
`*28-31 (E.D. Tex. Apr. 23, 2015). There is simply nothing convenient about travelling from Elk
`Grove, California to Marshall, Texas, and simply saying otherwise does not make it so.
`
`The Bank Office NetTech Identifies are Irrelevant to the Transfer Analysis.
`B.
`NetTech argues that four banks (Citi, Bank of America, Capital One, and JP Morgan
`Chase) maintain unspecified “corporate operations” in Texas which allegedly possess relevant
`information. Opp. at 3. This argument is unavailing.
`
`4
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`Case 2:19-cv-00118-JRG Document 43 Filed 08/09/19 Page 7 of 8 PageID #: 463
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`First, NetTech contends the banks it selectively identifies are knowledgeable about the
`“implementation of the accused technology.” Opp. at 3; id. at 10. But NetTech has already
`consented to withdraw its indirect infringement allegations of contributory and induced
`infringement. Dkt. 28 at 17. And NetTech’s First Amended Complaint does not plead joint
`infringement. Dkt. 5. Accordingly, the banks’ alleged “implementation of the accused
`technology,” even if true (which it is not), is of no relevance to this case in all events. Regardless,
`NetTech’s characterization of the banks’ role is also incorrect: none of the banks NetTech
`identifies—or any of the other approximately 4,000 banks that support Apple Pay—are responsible
`for the technical specification, implementation, or integration of Apple Pay. Supp. Jaynes Dec.,
`¶¶11-13; see also Ex. 9 (list of participating Apple Pay banks).
`Second, NetTech speculates that the banks “likely” have “information that is relevant…to
`damages.” Opp. at 3. But NetTech fails to identify any relevant damages information that the
`banks allegedly possess that Apple does not. Nor, for that matter, does NetTech identify any
`evidence that the Dallas regional bank offices (which all are national banks with many other
`corporate offices and headquarters outside of Texas) would possess any such information. 4
`NetTech’s unsupported and unexplained speculation should be given no weight in the analysis.
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`IV.
`
`CONCLUSION
`For the reasons set forth above and in Apple’s motion, Apple respectfully requests that this
`Court transfer this action to the Northern District of California.
`
`4 NetTech identifies nothing unique about the four banks compared to the thousands of other banks
`that support Apple Pay, nor does it identify anything unique or different about those banks’ Dallas
`corporate offices compared to their other corporate offices—or headquarters—located in
`California or elsewhere outside of Texas. Notably, the very document NetTech cites states, for
`example, that Wells Fargo is headquartered in San Francisco, JP Morgan is headquartered in New
`York; and Bank of America headquartered in North Carolina. Opp. Ex. 5 at 18; see also Exs. 10
`and 11 (Citi headquartered in New York and Capital One in Virginia). Contrary to NetTech’s
`unsupported speculation, Apple has not conducted Apple Pay meetings with Citi, Bank of
`America, Capital One, or JP Morgan Chase in Texas. Supp. Jaynes Dec., ¶12. Any meetings
`regarding Apple Pay with these banks would have occurred at Apple’s offices in Cupertino, or
`occasionally at the banks’ headquarters in New York (for JP Morgan and Citi); Charlotte, North
`Carolina (for Bank of America); and McLean, Virginia (for Capital One). Id.
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`5
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`Case 2:19-cv-00118-JRG Document 43 Filed 08/09/19 Page 8 of 8 PageID #: 464
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`Dated: August 9, 2019
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`Respectfully submitted,
`
`/s/ Travis Jensen
`Claudia Wilson Frost – Lead Counsel
`State Bar No. 21671300
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`1301 McKinney, Suite 4100
`Houston, TX 77010
`Tel: (713) 658-6400
`Fax: (713) 658-6401
`cfrost@orrick.com
`
`Travis Jensen
`CA Bar No. 259925
`ORRICK, HERRINGTON, & SUTCLIFFE LLP
`1000 Marsh Road
`Menlo Park, CA 94025-1015
`Tel: (650) 614-7400
`Fax: (650) 614-7401
`tjensen@orrick.com
`
`Melissa Richards Smith
`State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Tel: 903.934.8450
`Fax: 903.934.9257
`melissa@gillamsmithlaw.com
`ATTORNEYS FOR DEFENDANT
`APPLE INC.
`
`CERTIFICATE OF SERVICE
`The undersigned certifies that the foregoing document was filed electronically on August
`9, 2019, pursuant to Local Rule CV-5 and has been served on all counsel who have consented to
`electronic service. Any other counsel of record will be served by first class U.S. mail on this same
`date.
`
`/s/ Travis Jensen
`Travis Jensen
`
`6
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