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`EXHIBIT D
`EXHIBIT D
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`NOTE: This order is nonprecedential.
`
`GAnited States Court of Appeals
`for the federal Circuit
`
`In re: GOOGLE LLC,
`Petitioner
`
`2022-140
`
`On Petition for Writ of Mandamusto the United States
`District Court for the Eastern District of Texas in No. 2:19-
`cv-00361-JRG, Chief Judge J. Rodney Gilstrap.
`
`In re: WAZE MOBILE LIMITED,
`Petitioner
`
`2022-141
`
`On Petition for Writ of Mandamusto the United States
`District Court for the Eastern District of Texas in No.2:19-
`cv-00359-JRG, Chief Judge J. Rodney Gilstrap.
`
`In re: SAMSUNG ELECTRONICSCoO., LTD.,
`SAMSUNG ELECTRONICS AMERICA,INC.,
`Petitioners
`
`2022-142
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`

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`2
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`IN RE: GOOGLE LLC
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`On Petition for Writ of Mandamusto the United States
`District Court for the Eastern District of Texas in No.2:19-
`cv-00362-JRG, Chief Judge J. Rodney Gilstrap.
`
`ON PETITION
`
`Before LOURIE, TARANTO, and HUGHES, Circuit Judges.
`
`LOURIE, Circuit Judge.
`
`ORDER
`
`In these consolidated cases, Google LLC, Waze Mobile
`Limited, and Samsung Electronics Co., Ltd. et al. (collec-
`tively, “Petitioners”) seek writs of mandamusdirecting the
`United States District Court for the Eastern District of
`Texas to transfer these cases to the United States District
`Court for the Northern District of California. AGIS Soft-
`ware Development, LLC (““AGIS”) opposes. For the reasons
`below, we grant the petitions and direct transfer.
`
`I A
`
`AGISis a subsidiary of Florida-based AGIS Holdings,
`Inc. AGIS was assigned AGIS Holdings’ patent portfolio
`andincorporated in the state of Texas shortly before AGIS
`started to file infringement suits in the Eastern District of
`Texas in 2017. AGIS shares an office in Marshall, Texas
`with another subsidiary of AGIS Holdings where AGIS
`maintains copies of its patents, assignmentrecords, prose-
`cution records, license agreements, and corporate records.
`No employee of AGISor a related AGIS entity works regu-
`larly from that location.
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`

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`IN RE: GOOGLE LLC
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`3
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`In the complaints underlying Appeal Nos. 2022-140
`and 2022-142, AGIS has accused: (1) Google’s software ap-
`plications that enable usersof its products to form groups,
`view the locations of other users on a map, and communi-
`cate together, of infringing U.S. Patents
`8,213,970;
`9,408,055; 9,445,251; 9,467,838; 9,749,829 (“the ’829 pa-
`tent”); and 9,820,123 (“the ’123 patent”); and (2) Samsung
`of infringing the ’829 and ’123 patents for selling devices
`that run Google’s accused applications and that use Sam-
`sung’s messaging functionality in conjunction with those
`applications.
`
`Google and Samsung moved under 28 U.S.C. § 1404(a)
`to transfer AGIS’s infringement actions to the Northern
`District of California. They argued that the accusedsoft-
`ware applications at the center of the cases were designed
`and developed at Google’s headquarters within the North-
`ern District of California; that potential witnesses and
`sources of proof were in the Northern District of California
`(including Google’s source code and technical documents,
`Google’s employees that were knowledgeable of the accused
`products, and prior art witnesses); and that, as a matterof
`judicial economy, the cases should be transferred together
`to be decided by the sametrial judge.
`
`Thedistrict court denied the motions. The court noted
`that the Northern District of California had a comparative
`advantage in being able to compel unwilling witnesses. On
`the other hand, the court determined that court congestion,
`judicial economy considerations, and local interest factors
`all weighed against transfer.
`In particular,
`the court
`weighedagainst transfer the fact that AGIS had previously
`litigated the asserted patents before the sametrial judge
`up to the pretrial conference. The remaining factors, the
`court determined, favored neither of the two possible fo-
`rums. On balance, the court determined that Google and
`Samsunghadeachfailed to demonstrate that the Northern
`District of California was clearly more convenient and ac-
`cordingly denied transfer.
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`

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`4
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`IN RE: GOOGLE LLC
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`B
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`In the third case before us, AGIS has accused Waze (a
`wholly-owned subsidiary of Google) of similarly infringing
`the ’829 and 7123 patents based on the Waze Carpool mo-
`bile applications. The Waze case wasactually initially con-
`solidated with the Samsung and Google cases. Like Google
`and Samsung, Waze movedto transfer to the Northern Dis-
`trict of California. Waze argued that its employees respon-
`sible for the accused applications, including its Managing
`Director, are in the Northern District of California (as well
`as Israel and New York) and that Waze does not have any
`offices or employees in the Eastern District of Texas. Waze
`also identified the same prior art witnessesas identified by
`Google and Samsungin Northern California. Waze added
`that its documents are physically present and/or electroni-
`cally accessible from Northern California.
`
`As with Samsung’s and Google’s motions, the district
`court denied Waze’s transfer request. The district court
`found that the compulsory process factor favored transfer.
`But, as in the Samsung and Google cases,
`the court
`weighed against transfer its prior familiarity with AGIS’s
`patents and that it could likely hold a trial sooner. The
`district court found that the remaining factors were neu-
`tral. On balance, the district court similarly found that
`Waze hadfailed to show that the Northern District of Cal-
`ifornia was a clearly more convenient forum for the litiga-
`tion than the Eastern District of Texas. Waze, Google, and
`Samsung then each filed identical petitions seeking writs
`of mandamus, and weconsolidated the petitions for pur-
`posesof briefing and resolution.
`
`II
`
`A
`
`Wefollow regional circuit law on transfer motions un-
`der 28 U.S.C. § 1404(a). See In re TS Tech USA Corp., 551
`F.3d 1315, 1319 (Fed. Cir. 2008). In deciding whether the
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`

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`IN RE: GOOGLE LLC
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`5
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`should have granted transfer under
`court
`district
`§ 1404(a), we ask whether “the movant demonstrate[d]
`that the transferee venueis clearly more convenient” such
`that the district court’s contrary determination wasa clear
`abuseof discretion. In re Radmax, Ltd., 720 F.3d 285, 288
`(5th Cir. 2018) (quoting In re Volkswagen ofAm., Inc., 545
`F.3d 304, 315 (5th Cir. 2008) (en banc) (internal quotation
`marks omitted)).
`
`The Fifth Circuit has identified private and public in-
`terest factors relevant to determining whether a case
`should be transferred under § 1404(a). The public interest
`factors are: (1) the administrative difficulties flowing from
`court congestion; (2) the local interest in having disputes
`regarding activities occurring principally within a particu-
`lar district decided in that forum; (8) the familiarity of the
`forum with the law that will govern the case; and (4) the
`avoidance of unnecessary problemsof conflict of laws or in
`the application of foreign law. In re Juniper Networks, Inc.,
`14 F.4th 1313, 1817 (Fed. Cir. 2021). The private interest
`factors are:
`(1) the relative ease of access to sources of
`proof; (2) the availability of compulsory process to secure
`the attendance of non-party witnesses whose attendance
`may need to be compelled by court order; (8) the relative
`convenienceof the two forumsfor potential witnesses; and
`(4) all other practical problems that makethetrial of a case
`easy, expeditious, and inexpensive. Id. at 1316-17.
`
`Mindful that the district court is generally better posi-
`tioned to evaluate the evidence,we review a transfer ruling
`for a clear abuse of discretion. See In re Vistaprint Lid.,
`628 F.3d 1342, 1384446 (Fed. Cir. 2010); T'S Tech, 551 F.3d
`at 1319 (noting that a petitioner must demonstratethat the
`denial was a “clear” abuse of discretion such that refusing
`transfer produced a “patently erroneous result” (quoting
`Volkswagen, 545 F.3d at 310 (internal quotation marks
`omitted)); see also Juniper, 14 F.4th at 1318 (explaining
`that “when a district court’s denial of a motion to transfer
`amounts to a clear abuse of discretion under governing
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`

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`6
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`IN RE: GOOGLE LLC
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`legal standards, we have issued mandamusto overturn the
`denial of transfer” and collecting cases granting manda-
`mus).
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`Petitioners argue that the district court’s failure to find
`that the convenience factors strongly favor transfer in all
`three cases was a clear abuse of discretion. They contend
`that Northern California is far more easily accessible for
`potential witnesses and sources of proof. Petitioners also
`contend that the transferee venuehasa stronglocal inter-
`est in these cases while the Eastern District has no cog-
`nizable interest. In this regard, Petitioners emphasizethat
`AGIS’s connections to the Eastern District are entitled to
`minimal consideration because they are litigation-driven.
`Petitioners further contend that any judicial economy con-
`siderations that favor keeping these cases in a district in
`which AGISpreviously litigated its patents are insufficient
`to outweigh the clear convenienceof the transferee forum.
`
`AGISresponds that the district court correctly denied
`transfer in all three cases. AGIS argues that its own wit-
`nesses either reside in, or would prefer to travel to, the
`Eastern District of Texas. AGIS further contends that the
`Eastern District is more convenient for accessing AGIS’s
`patent-related documents andlicense agreementsstored at
`its offices in Marshall. AGIS further asserts that the dis-
`trict court was correct to not weighthe local interest factor
`in favor of transfer in the cases because of AGIS’s connec-
`tions to the Eastern District. AGIS also contends that the
`Eastern District has a comparative advantage both with
`regard to the court congestion factor and with regard to ju-
`dicial economy considerations given its prior handling of
`AGIS’s patent infringementsuits.
`
`B
`
`Weagree with Petitioners that the Northern District of
`California is clearly the more convenient forum in the
`Google and Samsung cases. Given that Google’s accused
`functionality is at the center of the allegations in both
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`

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`IN RE: GOOGLE LLC
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`7
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`cases, it is not surprising that witnesses reside in Northern
`California—the location of Google’s headquarters where
`the accused technology was developed. Google and Sam-
`sung each identified at least 5 Google employees in the
`transferee forum with relevant and material information.
`Samsung and Google further identified five prior art wit-
`nesses in the Northern District of California. Transfer
`would ensure not only that the forum would be more con-
`venient for the balance of the witnesses, but also that a
`court could compeltheir testimony if necessary.
`
`The district court weighed against transfer the pres-
`ence of an AGIS consultant, Eric Armstrong,in the Eastern
`District as a potential witness on whether AGIS Holdings’
`own products constituted invalidating prior art.1 But Mr.
`Armstrong appears to have disclaimed material knowledge
`of those products before the applicable priority dates.
`Appx547—550. And even accounting for Mr. Armstrong,
`Samsung and Google identified far more witnesses in
`Northern California. Moreover, while AGIS notes that sev-
`eral of its potential witnesses in Austin, Colorado, Virginia,
`and Florida would prefer to travel to Eastern Texas, the
`district court here correctly recognized that these wit-
`nesses werenotentitled to significant weight because these
`witnesses “would require hours of travel regardless.”
`Appx006.
`
`Wealso agree with Petitioners that the sourcesof proof
`factor weighsin favorof transfer. Google explains, without
`dispute from AGIS, that the technical documents and
`source code relating to the accused functionality “are phys-
`ically present and/or electronically accessible” in the
`Northern District of California. Appx229. The district
`court discounted the convenience oflitigating these cases
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`The district court treated the presence of AGIS’s
`1
`expert witness in the Eastern District as entitled to little
`weight.
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`

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`8
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`IN RE: GOOGLE LLC
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`close to that evidence on the ground that Google could pro-
`duce the information electronically in the Eastern District.
`See, e.g., Appx004. But “while electronic storage of docu-
`ments makes them more widely accessible than was true
`in the past, that does not make the sources-of-proof factor
`irrelevant.” Juniper, 14 F.4th at 1321.
`
`The district court also weighed against transfer the
`fact that AGIS stores its patent-related documentsandcor-
`porate recordsat its office space in Marshall, Texas. How-
`ever, it appears that the relationship between the forum
`and AGISandits materials served no meaningful purpose,
`not even to secure application of Texas substantive law to
`AGIS, except to attempt to establish a presence for forum
`selection for patent cases. AGISleasedits office just prior
`to commencinglitigation in the Eastern District. And the
`company’s Texasoffice, where it stores the above-identified
`documents, does not appear to be a place of regular busi-
`ness; AGIS’s principals and employees do not work from
`that office. AGIS therefore has no presence in Texas that
`should be given significant weight in this analysis. See In
`re Verizon Bus. Network Servs. Inc., 635 F.3d 559, 562 (Fed.
`Cir. 2011) (rejecting the argument that documents that
`were nothing morethanartifacts of litigation were entitled
`to weight).?
`
`Turning to the public interest factors, we agree with
`Petitioners that the district court failed to give full weight
`to the Northern District of California’s comparative local
`interest in resolving the claims against Google and Sam-
`sung. These cases are analogousto the situation in Juni-
`per where the accused products were designed and
`developed in the transferee forum andplaintiffs only con-
`nections to the transferor forum were largely tied to
`
`The court also pointed to potential documents from
`2
`Mr. Armstrong, but that witness testified that “all docu-
`ments are on AGIS, I don’t have any.” Appx462.
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