Case 2:22-cv-00263-JRG-RSP Document 41-3 Filed 01/10/23 Page 1 of 54 PageID #: 1275
`Case 2:22-cv-00263-JRG-RSP Document 41-3 Filed 01/10/23 Page 1 of 54 PagelD #: 1275
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`EXHIBIT B
`EXHIBIT B
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`Case 2:22-cv-00263-JRG-RSP Document 41-3 Filed 01/10/23 Page 2 of 54 PageID #: 1276
`Case: 22-140 Document: 2-1 Page: 1 Filed: 04/04/2022
`
`
`No. 22-___
`United States Court of Appeals
`for the Federal Circuit
`________________
`
`
`
`IN RE GOOGLE LLC, SAMSUNG ELECTRONICS CO., LTD., SAMSUNG
`ELECTRONICS AMERICA, INC., AND WAZE MOBILE LIMITED,
`
`Petitioners.
`________________
`On Petition for a Writ of Mandamus to the
`United States District Court for the Eastern District of Texas,
`Case Nos. 2:19-cv-00361, 2:19-cv-00359, 2:19-cv-00362
`Chief Judge J. Rodney Gilstrap
`________________
`
`EVAN MANN
`MUNGER, TOLLES & OLSON LLP
`560 Mission Street
`27th Floor
`San Francisco, CA 94105
`Telephone: (415) 512-4000
`
`Email: ginger.anders@mto.com
`
`jordan.segall@mto.com
`
`evan.mann@mto.com
`
`PETITION FOR A WRIT OF MANDAMUS
`________________
`GINGER D. ANDERS
`MUNGER, TOLLES & OLSON LLP
`601 Massachusetts Avenue NW
`Suite 500 E
`Washington, DC 20001
`Telephone: (202) 220-1100
`
`JORDAN D. SEGALL
`MUNGER, TOLLES & OLSON LLP
`350 South Grand Avenue
`50th Floor
`Los Angeles, CA 90071
`Telephone: (213) 683-9100
`
`Counsel for Petitioners Google LLC, Samsung Electronics Co., Ltd.,
`Samsung Electronics America, Inc., & Waze Mobile Limited
`
`April 1, 2022
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 41-3 Filed 01/10/23 Page 3 of 54 PageID #: 1277
`Case: 22-140 Document: 2-1 Page: 2 Filed: 04/04/2022
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`CERTIFICATE OF INTEREST
`
`Counsel for Petitioners certifies the following:
`
`1.
`
`The full name of every party represented by me is:
`
`Google LLC; Samsung Electronics Co., Ltd.; Samsung Electronics
`America, Inc.; Waze Mobile Limited
`
`2.
`
`The names of the real parties in interest represented by me are:
`
`None other than Petitioners.
`
`3.
`
`All parent corporations and any publicly held companies that own
`10% or more of stock in the parties represented by me are:
`
`Google LLC: Alphabet Inc.; XXVI Holdings Inc.
`
`Samsung Electronics Co., Ltd.: None
`
`Samsung Electronics America, Inc.: Samsung Electronics Co., Ltd.
`
`Waze Mobile Limited: Acrum (Israel) Ltd.; Alphabet Inc.; Google
`LLC; Google Europe, Middle East and Africa Unlimited Company;
`Google International LLC; Google Technology Holdings LLC; KHA
`Technologies Inc.; XXVI Holdings Inc.
`
`4.
`
`The names of all law firms and the partners or associates that
`appeared for the parties now represented by me before the
`originating court or that are expected to appear in this court (and
`who have not or will not enter an appearance in this case) are:
`
`O’Melveny & Myers LLP (for all Petitioners): Darin W. Snyder;
`Luann L. Simmons; David S. Almeling; Mark Liang; Alexander B
`Parker; Amy Liang; Andrew Bledsoe; Bill Trac; Nancy Schroeder;
`Sorin Zaharia; Stacy Yae; Will C. Autz.
`
`Mann Tindel & Thompson (for all Petitioners): J. Mark Mann;
`G. Blake Thompson.
`
`Gillam & Smith, LLP (for Samsung Electronics Co., Ltd. and
`Samsung Electronics America, Inc.): Melissa R. Smith
`
`
`
`i
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 41-3 Filed 01/10/23 Page 4 of 54 PageID #: 1278
`Case: 22-140 Document: 2-1 Page: 3 Filed: 04/04/2022
`
`Baker Botts LLP (for Samsung Electronics Co., Ltd. and
`Samsung Electronics America, Inc.): Neil P. Sirota, Timothy S.
`Durst,1 Margaret M. Welsh, Katharine M. Burke, Robert L. Maier.
`
`5.
`
`The title and number of any case known to counsel to be pending
`in this or any other court or agency that will directly affect or be
`directly affected by this Court’s decision in the pending appeal is:
`
`In re Google LLC, No. 22-126 (Fed. Cir.)
`
`6. Organizational Victims and Bankruptcy Cases: Fed. R. App. P.
`26.1(b) (organizational victims in criminal cases) and 26.1(c)
`(bankruptcy case debtors and trustees) are not applicable because
`this is not a criminal or bankruptcy case. See Fed. Cir. R.
`47.4(a)(6).
`
`
`
`
`
`DATED: April 1, 2022
`
`By: /s/ Ginger D. Anders
`
`
`
`Ginger D. Anders
`
`
`1 Since filing his notice of appearance in the trial court, Mr. Durst left
`Baker Botts LLP and joined O’Melveny & Myers LLP.
`
`
`
`ii
`
`

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`
`TABLE OF CONTENTS
`
`Page
`
`C.
`
`B.
`
`CERTIFICATE OF INTEREST .................................................................. i
`RELIEF SOUGHT ...................................................................................... 1
`INTRODUCTION ....................................................................................... 1
`ISSUE PRESENTED ................................................................................. 4
`STATEMENT OF FACTS .......................................................................... 5
`A. AGIS Sues Google, Samsung, and Waze in EDTX
`Despite NDCA Being the Center of Gravity for the
`Actions ...................................................................................... 5
`1.
`The Parties ...................................................................... 6
`2.
`The Witnesses and Sources of Proof .............................. 7
`Petitioners Challenge Venue, and the District Court
`Delays Deciding Those Motions ............................................ 10
`Petitioners File a Mandamus Petition Seeking a Stay,
`Which Impels the District Court to Rule on the
`Pending Venue-Transfer Motions ......................................... 14
`REASONS WHY THE WRIT SHOULD ISSUE ..................................... 17
`I. Mandamus Is Warranted Because Petitioners Have Shown
`That NDCA Is Clearly a More Convenient Venue ......................... 17
`II. The Convenience Factors Show that NDCA Is Clearly More
`Convenient ....................................................................................... 20
`A. Many Third Parties Are Subject to Compulsory Process
`in NDCA, While No Relevant Witnesses Are Subject to
`Compulsory Process in EDTX................................................ 20
`B. NDCA Is More Convenient for the Willing Witnesses ......... 23
`C.
`Petitioners’ Sources of Proof Are More Accessible in
`NDCA ...................................................................................... 27
`D. NDCA Has a Strong Local Interest in These Actions,
`While EDTX Has No Legitimate Local Interest ................... 31
`
`
`
`iii
`
`

`

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`
`TABLE OF CONTENTS
`(Continued)
`
`Page
`
`E. Any Difference in Court Congestion Is Minimal and
`Speculative, and Cannot Justify Retaining These
`Actions in EDTX ..................................................................... 37
`III. Taken Together, The Venue-Convenience Factors Require
`That All Three Cases Be Transferred to NDCA ............................ 38
`CONCLUSION ......................................................................................... 42
`CERTIFICATE OF COMPLIANCE ........................................................ 43
`CERTIFICATE OF SERVICE .................................................................. 44
`
`
`
`iv
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`

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`TABLE OF AUTHORITIES
`
`Page(s)
`
`FEDERAL CASES
`
`In re Apple Inc.,
`979 F.3d 1332 (Fed. Cir. 2020) ...................................................... 17, 31
`
`In re Apple Inc.,
`2021 WL 5291804 (Fed. Cir. Nov. 15, 2021) ....................... 2, 20, 22, 36
`
`Cheney v. U.S. Dist. Court for D.C.,
`542 U.S. 367 (2004) .............................................................................. 17
`
`In re DISH Network LLC,
`2021 WL 4911981 (Fed. Cir. Oct. 21, 2021) ........................................ 22
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009) ................................................ 2, passim
`
`In re Google Inc.,
`2017 WL 977038 (Fed. Cir. Feb. 23, 2017) ......................................... 39
`
`In re Google LLC,
`949 F.3d 1338 (Fed. Cir. 2020) ............................................................ 41
`
`In re Google LLC,
`2021 WL 4427899 (Fed. Cir. Sept. 27, 2021) ...................... 2, 24, 25, 38
`
`In re Google LLC,
`2021 WL 4592280 (Fed. Cir. Oct. 6, 2021) .............................. 26, 28, 32
`
`In re Google LLC,
`2021 WL 5292267 (Fed. Cir. Nov. 15, 2021) ................................. 27, 38
`
`In re Hoffmann-La Roche Inc.,
`587 F.3d 1333 (Fed. Cir. 2009) ................................................ 3, passim
`
`Houston Trial Reps., Inc. v. LRP Publ’ns, Inc.,
`85 F. Supp. 2d 663 (S.D. Tex. 1999) .............................................. 24, 29
`
`
`
`v
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 41-3 Filed 01/10/23 Page 8 of 54 PageID #: 1282
`Case: 22-140 Document: 2-1 Page: 7 Filed: 04/04/2022
`
`TABLE OF AUTHORITIES
`(Continued)
`
`Page(s)
`
`In re Hulu, LLC,
`2021 WL 3278194 (Fed. Cir. Aug. 2, 2021) ................................... 20, 24
`
`In re Juniper Networks, Inc.,
`14 F.4th 1313 (Fed. Cir. 2021) ................................................. 2, passim
`
`Lyft, Inc. v. AGIS Software Dev. LLC,
`2022 WL 767616 (N.D. Cal. Mar. 14, 2022) .......................................... 7
`
`In re Microsoft Corp.,
`630 F.3d 1361 (Fed. Cir. 2011) ........................................................ 3, 35
`
`In re Netflix, Inc.,
`2022 WL 167470 (Fed. Cir. Jan. 19, 2022) ................................... 30, 37
`
`In re Pandora Media, LLC,
`2021 WL 4772805 (Fed. Cir. Oct. 13, 2021) .................................. 22, 23
`
`Regents of the University of California v. Eli Lilly & Co.,
`119 F.3d 1559 (Fed. Cir. 1997) ............................................................ 39
`
`In re Samsung Electronics Co., Ltd.,
`2 F.4th 1371 (Fed. Cir. 2021) ................................................... 3, passim
`
`In re TS Tech USA Corp.,
`551 F.3d 1315 (Fed. Cir. 2008) ............................................................ 17
`
`In re Verizon Bus. Network Servs. Inc.,
`635 F.3d 559 (Fed. Cir. 2011) .............................................................. 29
`
`In re Vistaprint Ltd.,
`628 F.3d 1342 (Fed. Cir. 2010) ............................................................ 39
`
`In re Volkswagen Group of Am., Inc.,
`2022 WL 697526 (Fed. Cir. Mar. 9, 2022) ........................................... 33
`
`
`
`vi
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 41-3 Filed 01/10/23 Page 9 of 54 PageID #: 1283
`Case: 22-140 Document: 2-1 Page: 8 Filed: 04/04/2022
`
`TABLE OF AUTHORITIES
`(Continued)
`
`Page(s)
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) (en banc) .............................. 17, 18, 28, 33
`
`In re Zimmer Holdings, Inc.,
`609 F.3d 1378 (Fed. Cir. 2010) ............................................................ 35
`
`FEDERAL STATUTES
`
`28 U.S.C. § 1404(a) ....................................................................... 10, 11, 17
`
`28 U.S.C. § 1406........................................................................................ 10
`
`
`
`vii
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`Case 2:22-cv-00263-JRG-RSP Document 41-3 Filed 01/10/23 Page 10 of 54 PageID #:
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`1284
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`
`
`RELIEF SOUGHT
`
`Petitioners respectfully request that this Court issue a writ of
`
`mandamus to the United States District Court for the Eastern District of
`
`Texas (“EDTX”) directing the district court to vacate its orders denying
`
`Petitioners’ motions to transfer and to transfer each case to the United
`
`States District Court for the Northern District of California (“NDCA”).
`
`INTRODUCTION
`
`After refusing to rule for nearly two years on Petitioners’ motions to
`
`transfer these cases to NDCA, the district court denied the motions on
`
`grounds that squarely contravene this Court’s settled precedents and
`
`that uncritically accept the plaintiff’s efforts to manufacture venue in
`
`EDTX. NDCA is unquestionably the locus of these cases and the more
`
`convenient forum. Plaintiff AGIS Software Development’s (“AGIS”)
`
`allegations primarily concern Google products, developed and
`
`maintained at Google’s NDCA headquarters by Google employees.
`
`NDCA has subpoena power over unwilling witnesses, while EDTX has
`
`none. NDCA is more convenient for the overwhelming majority of willing
`
`witnesses with relevant information, while few such witnesses are in
`
`EDTX. The vast majority of the relevant proof is located in NDCA. And
`
`
`
`1
`
`

`

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`
`
`NDCA has a strong local interest in the suit, while EDTX’s attenuated
`
`interest arises solely from the efforts of AGIS to support venue in the
`
`district. Indeed, AGIS’s employee-less EDTX base was established at a
`
`local law firm’s office shortly before AGIS began litigating in EDTX.
`
`In nonetheless refusing to transfer the cases, the district court
`
`disregarded this Court’s transfer precedents. The district court
`
`minimized the presence of willing and unwilling witnesses in NDCA and
`
`gave weight to a single witness in EDTX even though he testified that he
`
`lacked relevant information, thereby contravening In re Genentech, Inc.,
`
`566 F.3d 1338, 1343 (Fed. Cir. 2009). The district court also ignored this
`
`Court’s direction that witness convenience and the availability of
`
`compulsory process “weigh[] strongly in favor of transfer” where the
`
`relevant witnesses are overwhelmingly in the transferee district. In re
`
`Apple Inc., No. 21-181, 2021 WL 5291804, at *3 (Fed. Cir. Nov. 15, 2021)
`
`(emphasis added); see also In re Google LLC, No. 21-170, 2021 WL
`
`4427899, at *4 (Fed. Cir. Sept. 27, 2021). The district court also
`
`discounted the relevant documents and source code in NDCA simply
`
`because they could be produced electronically, contrary to In re Juniper
`
`Networks, Inc., 14 F.4th 1313, 1321 (Fed. Cir. 2021). And perhaps most
`
`
`
`2
`
`

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`
`
`egregiously, the district court concluded that EDTX had the superior
`
`local interest by disregarding NDCA interests that this Court has
`
`expressly recognized, In re Samsung Electronics Co., Ltd., 2 F.4th 1371,
`
`1380 (Fed. Cir. 2021); In re Hoffmann-La Roche Inc., 587 F.3d 1333, 1337
`
`(Fed. Cir. 2009); by crediting AGIS’s attorney representations about yet-
`
`to-be-briefed, unspecified “new evidence” that purportedly suggests
`
`Google has “ties” to EDTX; and by disregarding the evidence that AGIS
`
`manufactures its presence in EDTX for litigation. See In re Microsoft
`
`Corp., 630 F.3d 1361, 1365 (Fed. Cir. 2011). In these respects and others
`
`discussed below, the district court clearly abused its discretion.
`
`The prejudice resulting from the district court’s erroneous transfer
`
`denials has been compounded by the procedural irregularities that have
`
`attended this litigation from the outset. Petitioners filed these
`
`convenience-transfer motions in 2020, shortly after the suits were filed,
`
`and Google also moved to dismiss for improper venue. While the cases
`
`progressed through claim construction and discovery, the court rebuffed
`
`repeated requests to rule on venue or stay the cases. In January 2022,
`
`the court lifted an unrelated stay and set trial for June 2022 with venue
`
`still undecided. Petitioners were forced to seek mandamus to compel the
`
`
`
`3
`
`

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`
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`court to rule — and only then did the court adjudicate Petitioners’
`
`convenience-transfer motions.
`
` Making matters worse, Google’s
`
`improper-venue motion remains undecided, even though the court
`
`previously recognized that, given the substantial overlap among these
`
`cases and Google’s status as the primary defendant, the court could not
`
`appropriately decide to keep all three cases in EDTX without first
`
`deciding whether Google could be sued in the district at all.
`
`Nevertheless, that is exactly what the district court has now done. This
`
`Court should put an end to the continuing prejudice that Petitioners are
`
`suffering in an inconvenient forum, and direct the district court to
`
`transfer these cases to NDCA, where they should have been brought in
`
`the first place.
`
`ISSUE PRESENTED
`
`Whether the district court clearly abused its discretion in refusing
`
`to transfer the cases to NDCA.
`
`
`
`4
`
`

`

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`
`
`STATEMENT OF FACTS
`
`A. AGIS Sues Google, Samsung, and Waze in EDTX
`Despite NDCA Being the Center of Gravity for the
`Actions
`
`In November 2019, AGIS sued Google in EDTX, alleging
`
`infringement of six patents. Appx080. AGIS filed similar lawsuits
`
`against (1) Samsung Electronics Co., Ltd. and Samsung Electronics
`
`America, Inc. (collectively, “Samsung”) and (2) Waze Mobile Limited
`
`(“Waze”), alleging infringement of two of the same six patents. Appx150;
`
`Appx161. The district court consolidated the cases, with Google’s case as
`
`the lead case. Appx212. AGIS’s action against Google alleges that maps-
`
`related Google applications and software include functionality allowing
`
`users to form groups to share location information, and that this
`
`functionality infringes the asserted patents. Appx117. AGIS’s complaint
`
`against Samsung is directed almost entirely to the same Google software,
`
`but on Samsung devices. Appx163-166. The complaint against Waze, a
`
`Google subsidiary, accuses different products implementing similar
`
`functionality. Appx151.
`
`
`
`5
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`

`

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`
`
`
`1.
`
`The Parties
`
`Google is a Delaware-registered LLC based in Mountain View,
`
`California, in NDCA. Google’s Mountain View headquarters is the
`
`strategic center of its business and is where most significant design and
`
`engineering decisions are made for the accused products. Appx207-208;
`
`Appx427. Google has no offices or employees in EDTX.
`
`Samsung Electronics Co., Ltd. is a Korean corporation with its
`
`principal place of business in Suwon, Korea. Appx239.
`
`Samsung Electronics America, Inc. is a New York corporation with
`
`its principal place of business in Ridgefield Park, New Jersey. It
`
`maintains offices in numerous U.S. locations, including in Mountain
`
`View, where it has hundreds of employees, and Plano, Texas. Appx236.
`
`Waze is an Israeli corporation with offices in Tel Aviv. Google
`
`acquired Waze in 2013, and the Waze employees responsible for the Waze
`
`mobile app became Google employees. They are located primarily in
`
`Israel, New York, and Northern California. Appx210.
`
`Although AGIS is a Texas LLC with its principal place of business
`
`in Marshall, Texas, AGIS has minimal ties to EDTX. AGIS is a patent
`
`holding company that is related to two Florida corporations: AGIS
`
`
`
`6
`
`

`

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`
`
`
`Holdings, Inc. and Advanced Ground Information Systems, Inc.
`
`Appx328-330. AGIS was formed in June 2017, after AGIS, Inc. lost a
`
`patent action it had brought in Florida. See Advanced Ground
`
`Information Systems, Inc. v. Life360, Inc., No. 16-1332, slip op. (Fed. Cir.
`
`Mar. 20, 2017); Appx 511-512. Shortly thereafter, the other AGIS entities
`
`assigned many of the asserted patents to the new entity, and AGIS began
`
`to litigate in EDTX. See, e.g., Lyft, Inc. v. AGIS Software Dev. LLC, No.
`
`21-cv-04653, 2022 WL 767616, at *2 (N.D. Cal. Mar. 14, 2022) (describing
`
`AGIS’s multiple EDTX “litigation campaigns” against a dozen
`
`defendants).
`
`AGIS’s Marshall office is little more than a toehold for venue in
`
`EDTX. Malcolm K. Beyer, Jr., the CEO of AGIS and lead inventor on the
`
`patents-in-suit, resides in Florida. Appx327-328. No employees work
`
`from AGIS’s Marshall office, and the only documents stored there were
`
`copied and sent from other AGIS entities in Florida. Appx448; Appx426;
`
`Appx527-529.
`
`2.
`
`The Witnesses and Sources of Proof
`
`Google’s witnesses and documents relevant to this litigation were
`
`located in NDCA when AGIS filed its complaint. The design, research,
`
`
`
`7
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`

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`
`
`
`and development of the accused Google products occurred in NDCA.
`
`Appx243-245.
`
` Google
`
`identified
`
`five witnesses particularly
`
`knowledgeable about the relevant issues, each located in NDCA.
`
`Appx427-428. And Google’s documents and source code for its products
`
`are created and maintained in NDCA. Appx245. Google has no relevant
`
`employees or documents in EDTX. Appx245-246.
`
`Employees responsible for the Waze application are located
`
`primarily in Israel, New York, and Northern California. Waze identified
`
`two individuals in NDCA with particularly relevant knowledge.
`
`Appx358. Waze’s documents are most accessible from its offices in Israel,
`
`New York, or Northern California. Appx267; Appx245. Waze has no
`
`employees or documents in EDTX. Appx245-246.
`
`Because AGIS’s allegations against Samsung are primarily
`
`directed to accused Google applications, most of the relevant witnesses in
`
`Samsung’s case are the same NDCA-based Google employees relevant in
`
`Google’s case. Samsung identified seven third-party Google witnesses
`
`located in NDCA. Appx222. The sole accused Samsung-designed
`
`software product, which accounts for a tiny fraction of AGIS’s claimed
`
`damages against Samsung, is developed by Samsung engineers in Korea.
`
`
`
`8
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`

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`
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`Appx 219, Appx221; Appx239. Samsung has no employees in EDTX with
`
`technical knowledge of, or technical documents related to, the accused
`
`functionality. Appx239-240; Appx236-237.
`
`Many third-party witnesses are also located in California.
`
`Petitioners identified five prior-art witnesses and a prosecutor of the
`
`asserted patents, all located in California. Appx429; Appx263; Appx223.
`
`AGIS’s documents are most accessible from its affiliate’s offices in
`
`Florida; the documents in AGIS’s Marshall office are copies of the
`
`Floridian originals. Appx442-444; Appx448. AGIS identified many
`
`potential witnesses, but none in EDTX with knowledge relevant to this
`
`case. AGIS’s “primary witness” and CEO, Mr. Beyer, and its corporate
`
`secretary both reside in Florida. Appx501. AGIS’s other potential
`
`witnesses reside in Florida, Kansas, Colorado, Virginia, and Austin,
`
`Texas. Appx501-502; Appx514-516. AGIS identifies only two witnesses
`
`in EDTX, but neither is relevant to the transfer calculus. One is an
`
`expert witness, Joseph McAlexander III, and the other is Eric Armstrong,
`
`an erstwhile AGIS consultant who has disclaimed any knowledge or
`
`documents relevant to these cases. Appx462; Appx466; Appx547-550.
`
`
`
`9
`
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`B. Petitioners Challenge Venue, and the District Court
`Delays Deciding Those Motions
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`In February 2020, Google filed a motion to dismiss under 28 U.S.C.
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`§ 1406 on the ground that venue was improper because Google lacks a
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`“regular and established place of business” in EDTX. Appx181-201. In
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`the alternative, Google requested transfer to NDCA. Appx199. Samsung
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`and Waze each filed motions to transfer the cases to NDCA for
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`convenience under 28 U.S.C. § 1404(a). Appx214-234; Appx256-272.
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`Briefing on all three venue-related motions was completed by April 2020.
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`Appx032-038.
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`Throughout 2020, the cases progressed without a decision on the
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`venue motions. The parties served infringement and invalidity
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`contentions and conducted significant fact discovery. Claim construction
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`briefing was completed by September 2020, and a Markman hearing was
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`set for October. Appx039-040.
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`Several weeks before the Markman hearing, Petitioners moved to
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`stay all proceedings in an attempt to prevent claim construction from
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`proceeding with venue unresolved. Appx393-398. The court ignored the
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`motion and proceeded with the Markman hearing. Appx041. Fact
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`discovery closed in November 2020. Appx337.
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`In December 2020, the district court finally held a hearing on
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`Petitioners’ venue motions, nine months after they were filed. Appx399;
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`Appx041. But the court declined to decide the motions or to stay the
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`cases. Instead, the court held sua sponte that AGIS should receive
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`supplemental discovery regarding Google’s purported place of business
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`in EDTX — even though AGIS had never served any venue discovery
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`requests. Appx405-407. AGIS asked the court to adjudicate the § 1404(a)
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`motions, but the court declined, reasoning that the most convenient
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`forum for the Samsung and Waze cases depended on the outcome of
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`Google’s improper-venue motion. Appx411-413. The court also permitted
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`Google to file its own § 1404(a) transfer motion, which it did one week
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`later. Appx417; Appx420-439.
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`Despite the four pending motions, the court pressed the cases
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`forward. In December 2020, Magistrate Judge Payne issued a claim
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`construction order, Appx042, and the parties completed expert discovery
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`and filed dispositive and Daubert motions. Appx336-337.
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`In light of the mounting prejudice Petitioners faced as the cases
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`progressed, Petitioners moved for reconsideration of their motion to stay.
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`Appx474-482. In early January 2021, the court denied reconsideration
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`and extended all case deadlines by a month to permit briefing on the new
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`improper-venue discovery to be completed. Appx483-486; Appx535-536.
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`In February 2021, the court stayed the cases pending resolution of
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`ex parte reexaminations concerning each patent-in-suit. Appx585-590.
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`Petitioners subsequently requested that the district court maintain the
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`stay after the reexaminations concluded so that venue could be settled.
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`Appx604; Appx613.
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`The district court ignored that request. On January 28, 2022, after
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`the ex parte reexamination proceedings had concluded, the court entered
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`an order lifting the stay and setting a trial date of June 6, 2022. Appx617-
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`621. The court also vacated every pending motion — including
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`Petitioners’ four venue motions — by denying them without prejudice
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`“[g]iven the passage of time since the stay was granted.” Appx621.
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`Petitioners thus faced a trial in a mere four months, even though venue
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`was unresolved and the court had taken Petitioners’ fully briefed venue
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`motions off the docket.
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`Petitioners therefore filed a “Motion to Reinstate” their venue
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`motions. Appx622-626. In a transparent effort to run out the clock with
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`trial approaching, Plaintiff’s counsel responded by demanding that
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`Google produce venue discovery from an unrelated case, Vocalife LLC v.
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`Harman International Industries Inc., No. 2:21-cv-00123-JRG (E.D.
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`Tex.), that AGIS claimed might be relevant to Google’s two-year-old
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`improper-venue motion.
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`On February 18, 2022, the district court held a status conference to
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`discuss reinstatement. AGIS consented to reinstating Petitioners’
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`convenience-transfer motions but opposed reinstating Google’s improper-
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`venue motion on the ground that “additional briefing would be helpful”
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`following its review of the Vocalife discovery. The court therefore ordered
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`another round of improper-venue briefing. Appx633-635. To avoid
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`prejudice from that delay, Petitioners urged the court to stay the cases
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`until the transfer and improper-venue motions were decided. Appx643,
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`Appx645. The court refused, and instead sua sponte deconsolidated the
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`three cases and reset the Google trial date to August 22, 2022, while
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`preserving the June 6 date for the trials against Samsung and Waze. The
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`court ordered deconsolidation notwithstanding the fact that the cases
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`against Google and Samsung involve largely the same Google products
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`and technologies, and trying them separately will force the same
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`witnesses to appear and testify two or even three times in EDTX over the
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`course of two months.
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`C. Petitioners File a Mandamus Petition Seeking a Stay,
`Which Impels the District Court to Rule on the
`Pending Venue-Transfer Motions
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`1. With no indication that the court would stay the cases or
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`expeditiously decide Petitioners’ venue motions — and a guarantee that
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`Google’s improper-venue motion would not be decided for months while
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`the parties re-briefed it — Petitioners were forced to file a petition for a
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`writ of mandamus with this Court, requesting a stay while the district
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`court decided their venue motions. In re Google LLC, No. 22-126
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`(Fed. Cir.).
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`Only then did the district court finally decide Petitioners’
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`convenience-transfer motions. The court ruled on those motions before
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`briefing on Google’s improper-venue motion was complete, despite having
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`previously remarked that resolving Google’s improper-venue motion was
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`necessary to identify the most convenient forums for the Waze and
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`Samsung cases. Appx411-413.
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`2.
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`The district court denied each of Petitioners’ three
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`convenience-transfer motions. On Google’s motion, the court held that,
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`of the relevant private interest factors, two were neutral, one favored
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`transfer, and one weighed against transfer:
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`•
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`•
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`•
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`•
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`The court held that the availability of compulsory process to
`secure the attendance of witnesses favored transfer, weighing
`Google’s five identified third-party witnesses against AGIS’s
`one, who testified that he had no knowledge relevant to the
`case. Appx004-005.
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`The court held that the cost of attendance for willing
`witnesses was neutral — despite the numerous NDCA-
`domiciled Google witnesses and the lack of any witnesses with
`relevant knowledge in EDTX — because the interests of the
`many Google witnesses in NDCA deserve “little weight”
`because they are employees. Appx006.
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`The court held that the relative ease of access to sources of
`proof was neutral because — although Google’s relevant
`documents and source code are created and maintained in
`NDCA and Google has no offices in EDTX — Google produces
`its documents electronically and so they can “readily be made
`accessible” in EDTX. Appx003-004.
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`The court held that judicial economy disfavored transfer,
`reasoning that its experience in prior litigation involving
`other parties but some of the same asserted patents was
`greater than the NDCA’s experience with those same patents.
`Appx006-007.
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`Of the relevant public interest factors, the court held that several
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`were neutral but that two “slightly” disfavored transfer:
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`•
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`The court held that