Case 6:12-cv-00799-JRG Document 31 Filed 02/21/13 Page 1 of 7 PageID #: 1363
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`INVENSYS SYSTEMS, INC.,
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`vs.
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`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
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`Plaintiff,
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`Case No. 6:12-cv-00799-LED
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`JURY TRIAL DEMANDED
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`Defendants,
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`and
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`MICRO MOTION INC., USA,
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`4824-8769-4866.1
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`INVENSYS SYSTEMS, INC.,
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`Counterclaim-Plaintiff,
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`vs.
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`Counterclaim-Defendant.
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`DEFENDANTS’ REPLY IN SUPPORT OF
`MOTION TO TRANSFER VENUE UNDER 28 U.S.C. § 1404(a)
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`Case 6:12-cv-00799-JRG Document 31 Filed 02/21/13 Page 2 of 7 PageID #: 1364
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`Invensys Systems, Inc. (“Invensys”) fails to establish that this case is any more
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`connected to Texas than any other state.1 In contrast, Micro Motion, Inc.’s (“Micro Motion”)
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`moving papers establish—and Invensys cannot and does not dispute—that the vast majority of
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`witnesses with knowledge of the facts relating to whether Invensys’s patents are valid and
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`infringed reside outside of Texas, and, in the case of Micro Motion’s witnesses, in Colorado.
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`The three major issues in any patent infringement case are: (1) whether the accused
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`products infringe the patents; (2) whether the patents are valid; and (3) if the patents are valid
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`and infringed, what remedy is appropriate. The briefing on this motion demonstrates that there
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`are no witnesses in Texas who are likely to address issues (1) or (2). As to infringement, the
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`persons most knowledgeable about Micro Motion’s products reside in Colorado. (See Dkt. No.
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`14-1, 1-10-13 Dudiak Decl. ¶¶ 4, 6-7, 10.) As to validity, all of the inventors reside outside of
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`Texas; indeed several reside overseas. As to issue (3), Invensys has not and cannot show any
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`real nexus between its damages claim and witnesses who reside in this District. Invensys argues
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`it sold millions of dollars of Coriolis flowmeters in Texas and that but for Micro Motion’s
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`alleged infringement, it would have sold 20-30 times that number. (Invensys’s Opp’n Mot.
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`“Opp’n” at 8-9.) If this were true, there would be thousands of instances in which Micro
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`Motion sold a Coriolis flowmeter in lieu of Invensys. Yet Invensys can only point to two
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`possible lost sales in this District. (Opp’n at 9.)
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`In the end, because the witnesses, facts, and issues in this case are most significantly
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`clustered in the District of Colorado, and because there is little meaningful connection to the
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`Eastern District of Texas, this case should be transferred to the District of Colorado.
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`1 Since Micro Motion moved for transfer to the District of Colorado, Invensys filed Plaintiff’s
`First Amended Complaint (Dkt. No. 25). The new allegations do not change the basis for Micro
`Motion’s motion, in which Emerson Electric Co. (“Emerson”) has joined. (Dkt. No. 30.)
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`4824-8769-4866.1
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`1
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`Case 6:12-cv-00799-JRG Document 31 Filed 02/21/13 Page 3 of 7 PageID #: 1365
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`A.
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`Invensys Overstates This Forum’s Interest in Resolving This Dispute.
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`This case is about Coriolis flowmeters, not the oil and gas industry.
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`1.
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`This case is about Coriolis flowmeters, but Invensys wrongly focuses on the geographic
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`concentration of the oil and gas industry rather than on the location of witnesses with relevant
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`knowledge. Invensys admits that Coriolis flowmeters are used in a variety of applications and
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`are heavily relied upon in the chemical and food and beverage industries, (Opp’n at 2), as well as
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`in the marine, power, and life sciences industries. (Ex. A, 2-21-13 Dudiak Decl. ¶ 4.)
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`2.
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`Colorado has a more significant local interest in resolving this dispute.
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`Invensys admits that Colorado has an interest in resolving this dispute that stems from
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`Micro Motion and its employees defending their business and professional reputations, but
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`characterizes it as “attenuated” because the accused products are sold in forums other than
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`Colorado. (Opp’n at 7.) This squarely contradicts In re Hoffman-La Roche, Inc., 587 F.3d 1333
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`(Fed. Cir. 2009), where the Federal Circuit made clear that in a patent infringement case a strong
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`local interest in the home state of the accused infringer (here, Colorado) exists because it “calls
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`into question the work and reputation” of the alleged infringers. Id. at 1336. Further, Invensys
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`fails to support the meaningless distinction it makes between consumer and industrial products.
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`(See Opp’n at 7.) Both In re TS Tech. U.S. Corp., 551 F.3d 1315 (Fed. Cir. 2008) and Odom v.
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`Microsoft Corp., 596 F. Supp. 2d 995 (E.D. Tex. 2009) explain that where, as here, a defendant
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`sells products nationwide no specific venue has a dominant interest in the dispute on the basis of
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`where sales are made. Neither case distinguishes between consumer and industrial products.
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`Invensys improperly relies on In re Affymetrix, Inc., Misc. Dkt. No. 913, 2010 U.S. App.
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`LEXIS 7968 (Fed. Cir. Apr. 13, 2010), to argue that the size of the oil, gas, and refining
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`industries means this forum has a particularly strong interest in this dispute. (Opp’n at 6.)
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`However, in Affymetrix, the Court found support for the denial of a motion to transfer venue
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`4824-8769-4866.1
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`Case 6:12-cv-00799-JRG Document 31 Filed 02/21/13 Page 4 of 7 PageID #: 1366
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`because “the products appear[ed] to be sold under discrete contracts with individual distributors
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`located in only one district, or only a relative few districts, and . . . one of those districts [was]
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`the chosen venue.” Affymetrix, 2010 U.S. App. LEXIS 7968, at *6 n.1. In that same footnote,
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`the Court noted, “[t]he mere sale of allegedly infringing products within the boundaries of the
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`transferor forum might be insufficient to avoid transfer of venue” where the accused products are
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`“sold within the boundaries of every United States judicial district, or a large number of them.”
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`Id. This case plainly falls within that latter category; Micro Motion’s Coriolis flowmeters are
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`sold in every state in the United States. (Ex. A, 2-21-13 A. Dudiak Decl. ¶ 7.)
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`B.
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`Significant Relevant Evidence Is Clustered in Colorado and Not in This District.
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`Invensys admits relevant witnesses and documents are not in this District.
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`1.
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`Invensys does not dispute that many relevant witnesses, including the inventors of the
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`patents-in-suit, do not reside in this District and that much of its relevant evidence is not located
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`in this District. Specifically, Invensys admits that its “design and manufacturing facilities are
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`located in Massachusetts,” (Opp’n at 3), and its “documents and witnesses are located across the
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`country in Texas, Washington D.C., Massachusetts, and overseas.” (Opp’n at 4.)
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`2.
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`Invensys ignores that significant evidence is clustered in Colorado.
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`Invensys ignores the concentration of evidence in Colorado by incorrectly claiming that
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`“there is no other locale [other than the Eastern District of Texas] in which the relevant evidence
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`and witnesses are clustered.” (Opp’n at 4.) The fact is Micro Motion is headquartered in
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`Colorado, most of its employees are located in Colorado, including employees involved in the
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`design and development of the accused products, Micro Motion’s financial, marketing, and other
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`business operations are located in Colorado, and relevant documents and witnesses are
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`concentrated in Colorado. (See Dkt. No. 14-1, 1-10-13 A. Dudiak Decl. ¶¶ 2, 4-8, and 10.)
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`While Invensys tries to shift focus from these facts, it does not dispute them.
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`4824-8769-4866.1
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`Case 6:12-cv-00799-JRG Document 31 Filed 02/21/13 Page 5 of 7 PageID #: 1367
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`Invensys overstates potential witnesses’ connections to this District.
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`3.
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`While ignoring the “cluster” of evidence in Colorado, Invensys exaggerates ties to this
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`District by claiming “several potential nonparty witnesses” are here. (Opp’n at 1.) The sum of
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`Invensys’s nonparty witnesses in this District are two customers to whom it claims to have lost
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`sales. (Opp’n at 9, 10.) The only other nonparty witnesses Invensys identifies are two other
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`customers elsewhere in Texas to whom it also claims to have lost sales. (Opp’n at 9.) But, as
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`discussed above, if it were true that Invensys lost tens of millions of dollars in sales, there would
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`be thousands of instances of lost sales nationwide. Two such instances in this District and two
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`more elsewhere in Texas would represent only a tiny fraction of the potential witnesses on this
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`issue. Additionally, Invensys asserts that it has three witness—differentiated only by seniority—
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`who may be necessary to testify regarding “Invensys’s financial information” in Plano and three
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`more “[s]ales and marketing” witnesses elsewhere in Texas. (Opp’n at 11-12.) It is questionable
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`that Invensys really would need all these witnesses—whom it admits are merely “potential”
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`witnesses—given the great overlap in their areas of testimony. (Opp’n at 11.)
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`Invensys overstates the connection to this District.
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`Invensys overstates Emerson’s and Micro Motion’s connections to Texas. For instance,
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`while Invensys claims that Emerson “appears to be actively expanding its Texas operations,” the
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`sole basis for this claim is three job postings on LinkedIn and a reference to service and training
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`centers in this District. (Opp’n at 7-8.) Job postings and service or training centers in Texas do
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`not mean that Texas employees have knowledge of the issues in this case. This is particularly
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`true since Emerson itself does not make, offer for sale or sell Coriolis flowmeters in Texas or
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`anywhere else. (Ex. B, 2-18-13 R. Ledford Decl. ¶ 6.)
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`Invensys’s counter to the concentration of Micro Motion’s witnesses and documents in
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`Colorado is merely that Micro Motion must have some sales personnel in Texas. (Opp’n at 13.)
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`4824-8769-4866.1
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`Case 6:12-cv-00799-JRG Document 31 Filed 02/21/13 Page 6 of 7 PageID #: 1368
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`As the Federal Circuit noted in Affymetrix, supra, the mere fact that accused products are sold in
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`the forum state as well as throughout the United States is an insufficient basis on which to deny a
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`motion to change venue. Affymetrix, 2010 U.S. App. LEXIS 7968, at *6 n.1. Further, Micro
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`Motion has previously indicated that its employees in this District—approximately two—have
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`no specific knowledge relating to the issues in this case, (Dkt. No. 14-1, 1-10-13 A. Dudiak Decl.
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`¶ 12), and Micro Motion does not have any facilities in Sherman or McKinney, Texas. (Ex. A,
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`2-21-13 A. Dudiak Decl. ¶ 5; see also Dkt. 14-1, 1-10-13 A. Dudiak Decl. ¶ 11.) Invensys also
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`exaggerates Micro Motion’s connection by assuming that Micro Motion representatives “travel
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`to Texas regularly” to attend meetings of the American Petroleum Institute and the
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`Instrumentation, Systems, and Automation Society. (Opp’n at 8.) In reality, meetings and
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`conferences for these organizations are often held outside of Texas, (Ex. A, 2-21-13 A. Dudiak
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`Decl. ¶ 6); however, this is irrelevant to this case and the convenience issues in this motion.
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`C.
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`Emerson Has Joined in Micro Motion’s Motion to Transfer.
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`Emerson has joined in Micro Motion’s motion to transfer, and concedes to personal
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`jurisdiction in Colorado. Invensys is correct that Emerson’s documents are likely to be located
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`in Saint Louis, Missouri. (Opp’n at 13.) But the location of Emerson’s operations has no
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`bearing on this motion because Emerson itself is not involved in the research, development,
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`manufacture, sale, or distribution of the accused products. (Ex. B, 2-18-13 R. Ledford Decl. ¶¶
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`6-7, 9; see also Ex. A, 2-21-13 A. Dudiak Decl. ¶¶ 8-10.)
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`CONCLUSION
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`For the foregoing reasons, and the reasons set forth in Micro Motion’s opening brief in
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`support of its motion to transfer venue (Dkt. No. 14), this case should be transferred to the
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`District of Colorado.
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`4824-8769-4866.1
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`Case 6:12-cv-00799-JRG Document 31 Filed 02/21/13 Page 7 of 7 PageID #: 1369
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`Dated: February 21, 2013
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`Respectfully submitted,
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`/s/Matthew J. Shin
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`Linda E.B. Hansen, WI Bar No. 1000660
`Richard S. Florsheim, WI Bar No. 1015905
`Jeffrey N. Costakos, WI Bar No. 1008225
`Kadie M. Jelenchick, WI Bar No. 1056506
`Matthew J. Shin, WI Bar No. 1090096
`Foley & Lardner LLP
`777 East Wisconsin Avenue
`Milwaukee, Wisconsin 53202
`Phone: (414) 271-2400
`Fax: (414) 297-4900
`Email: lhansen@foley.com
`rflorsheim@foley.com
`jcostakos@foley.com
`kjelenchick@foley.com
`mshin@foley.com
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`Guy N. Harrison, State Bar No. 00000077
`Harrison Law Firm
`217 N. Center Street
`Longview, Texas 75606
`Phone: (903) 758-7361
`Fax: (903) 753-9557
`Email: guy@gnhlaw.com and
`cj-gnharrison@att.net
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`Attorneys for Defendant and
`Counterclaim-Plaintiff Micro Motion, Inc.
`and Defendant Emerson Electric Co.
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`CERTIFICATE OF SERVICE
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`I hereby certify that on February 21, 2013, I electronically filed the foregoing document
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`with the Clerk of Court using the CM/ECF system which will send notification of such filing via
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`electronic mail to all counsel of record.
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`/s/Matthew J. Shin
`Matthew J. Shin
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`4824-8769-4866.1
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`6