Case 7:14-cv-00014-O Document 143 Filed 09/10/14 Page 1 of 30 PageID 2834
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`WICHITA FALLS DIVISION
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`Civil Action No. 7:14-cv-0014-O
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`§§§§§§§§§§§§§§§§§§
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`SUMMIT 6 LLC,
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`Plaintiff,
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`v.
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`HTC CORPORATION, HTC
`AMERICA, INC., LG
`ELECTRONICS, INC., LG
`ELECTRONICS USA, INC., LG
`ELECTRONICS MOBILECOMM
`USA, INC., MOTOROLA
`MOBILITY LLC, APPLE INC., and
`TWITTER, INC.,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Before the Court are Defendants’ Motion to Transfer to the Northern District of California,
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`filed June 10, 2014 (ECF No. 89) and Defendant Apple Inc.’s Motion to Sever, filed June 25, 2014
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`(ECF No. 111). Having considered the motions, responses, replies, appendices, record, and for the
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`reasons that follow, the Court denies Defendants’ Motion to Transfer to the Northern District of
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`California, and grants in part and denies in part Defendant Apple Inc.’s Motion to Sever.
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`I.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`Plaintiff Summit 6 LLC (“Summit 6”) is a Dallas-based company which “provides media
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`upload technology to device manufacturers, and providers of online services.” See Summit 6
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`Overview, www.summit6.com (last visited September 5, 2014). Summit 6 is the owner by
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`assignment of three United States Patents relating to processing digital images, specifically, U.S.
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`Case 7:14-cv-00014-O Document 143 Filed 09/10/14 Page 2 of 30 PageID 2835
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`Patent Nos. 6,895,557 (“the ’557 Patent”), 7,765,482 (“the ’482 Patent”), and 8,612,515 (“the ’515
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`Patent”) (collectively, the “Patents-in-Suit”). The ’557 Patent is entitled “Web-based Media
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`Submission Tool,” and relates to “the handling, manipulation and processing of digital content and
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`more particularly to the transportation and Internet publishing of digital content, particularly image
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`media objects and rich media.” See U.S. Patent No. 6,895,557 col. 1 l. 11-12 (filed July 21, 1999).
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`The ’482 Patent is a continuation of the earlier ’557 Patent, and is also entitled “Web-based Media
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`Submission Tool,” and relates to “the handling, manipulation and processing of digital content.” See
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`U.S. Patent No. 7,765,482 col. 1 l. 11-12 (filed October 8, 2004). The ’515 Patent is entitled
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`“System, Method and Apparatus for Media Submission,” and, like the ’557 and ’482 Patents, relates
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`to “the handling, manipulation and processing of digital content and more particularly to the
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`transportation and Internet publishing of digital content, particularly image media objects and rich
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`media.” See U.S. Patent No. 6,895,515 col. 1 l. 11-12 (filed April 29, 2011).
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`In 2011, Summit 6 sued defendants Research in Motion Corp., Research in Motion Ltd.,
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`Samsung Electronics Co., Ltd., Samsung Telecommunications America LLC, Multiply Inc., and
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`Facebook Inc. for infringing the ’482 Patent and the ’557 Patent in the Northern District of Texas.
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`See Summit 6 LLC v. Research in Motion Corp., et al., No. 3:11-cv-367-O. During the pendency
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`of the case, the Court reviewed the technology, construed the ’557 and ’482 Patents, ruled on various
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`evidentiary issues, presided over a jury trial on infringement and validity, and held a separate non-
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`jury trial on inequitable conduct relating to the ’482 Patent. The jury found infringement and
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`awarded Summit 6 $15 million in damages. The Court entered judgment in favor of Summit 6 and
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`the case is currently on appeal. See Summit 6 LLC v. Samsung Electronics Co., Ltd., Federal Circuit
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`Appeal No. 13-648.
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`On February 18, 2014, Summit 6 filed this patent infringement lawsuit alleging infringement
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`of the ’557 and ’482 Patents, as well as the ’515 Patent, against application developer Twitter, Inc.
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`(“Twitter”) and four mobile device manufacturers and their affiliates, namely, Apple Inc. (“Apple”),
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`HTC Corporation and HTC America, Inc. (collectively, “HTC”), LG Electronics, Inc., LG
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`Electronics USA, Inc., and LG Electronics MobileComm USA, Inc. (collectively, “LGE”), and
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`Motorola Mobility LLC (“Motorola”). The gravamen of Summit 6's lawsuit is that Defendants are
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`using Summit 6's patented technology without permission to produce and sell devices and/or operate
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`online services capable of obtaining digital content, pre-processing it, and transmitting it to another
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`device, server, or location. See generally First Amended Compl., ECF No. 6. Summit 6 alleges that
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`all Defendants have infringed, and continue to infringe, directly, contributorily, and/or through the
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`inducement of others, the claim inventions of the ’482 Patent and the ’515 Patent. See id. As to
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`Twitter, Summit 6 alleges that Twitter has infringed, and continues to infringe, directly,
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`contributorily, and/or through the inducement of others, the claim inventions of the three Patents-in-
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`Suit through certain of its upload services. See id. ¶¶ 107-119, 205-217, 219-230. Twitter’s accused
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`upload services include “the Twitter Application for iPhone, the Twitter Application for iPad, the
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`Twitter Application for Android Tablet, and any other Twitter Application capable of obtaining
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`digital content, pre-processing it, and transmitting it to another device, server, or location; the
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`Twitter content upload functionality integrated into the native sharing options for iOS and Android
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`devices; Twitter’s [Application Programming Interfaces] APIs related to obtaining digital content,
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`pre-processing it, and transmitting it to another device, server, or location; Twitter’s mobile website;
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`and Twitter’s website-related infrastructure.” See id. ¶¶ 107, 205, 219. As to the mobile device
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`manufacturers, Summit 6 alleges infringement of the ’482 Patent and the ’515 Patent based on each
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`device’s messaging technology, including use of “MMS functionality,” “Message-related APIs,” “the
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`integrated Twitter content upload functionality,” and “MMS-to-Twitter functionality.” See id. ¶¶
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`23, 35, 47, 59, 71, 83, 95, 121, 133, 145, 153, 169, 181, 193. Summit 6 seeks injunctive relief, as
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`well as damages, attorney’s fees and costs.
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`Defendants deny infringement and have asserted the affirmative defense that the Patents-in-
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`Suit are invalid, and, with regard to the ’482 and ’515 Patents, that the Patents are unenforceable due
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`to inequitable conduct of the inventors and prior owners of these patents. Defendants Motorola,
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`Twitter and HTC have also filed counterclaims for declaratory judgment of non-infringement and
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`invalidity of the Patents-in-Suit. See generally Apple Inc.’s Ans. & Aff. Def., ECF No. 49; Def.
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`Motorola’s Ans. & Countercl., ECF No. 51; Twitter, Inc.’s Ans. & Countercl., ECF No. 53; Ans.
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`& Aff. Def. & Countercl. of HTC Def., ECF No. 66; Ans. of LGE Def., ECF No. 64.
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`Plaintiff Summit 6 is a Delaware limited liability company with its principal place of
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`business in Dallas, Texas. First Amended Compl. ¶¶ 219-230; App. Supp. Resp. Ex. 4 (Pate Decl.)
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`¶¶ 12-18, ECF No. 118-1. Defendants’ places of incorporation and principal places of business are
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`scattered. Defendant Apple is a California corporation with its headquarters in Cupertino,
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`California, which is in the Northern District of California.. App. Supp. Mot. Transfer Ex. 240
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`(Buckley Decl.) ¶ 5, ECF No. 91-5. Defendant Twitter is a Delaware corporation with its principal
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`place of business in San Francisco, California, which is in the Northern District of California. Id.
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`Ex. 238 (Axelsen Decl.) ¶ 4. Defendant HTC Corporation is a Taiwanese corporation with its
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`principal place of business in Taiwan, ROC. Id. Ex. 249 (Bariault Decl.) ¶ 2. Defendant HTC
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`America, Inc. is incorporated in Washington and has its principal place of business in Bellevue,
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`Washington. Id. Defendant LG Electronics Mobilecomm U.S.A., Inc. (“LGE MobileComm”) is a
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`California corporation with its headquarters in San Diego, California, which is in the Southern
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`District of California. Id. Ex. 297 (Son Decl.) ¶ 3. Defendant LG Electronics, Inc. (“LGE Inc.”) is
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`a Korean company with its headquarters in Seoul, South Korea. Id. ¶ 4. Defendant LG Electronics
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`USA, Inc. is a wholly-owned subsidiary of LGE Inc., and has a warehouse facility in Fort Worth,
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`Texas Id. ¶¶ 4, 21-22. Defendant Motorola is a Delaware limited liability company with its
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`principal place of business in Chicago, Illinois. Id. Ex. 245 (Brown Decl.) ¶ 3.
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`Defendants move to transfer all proceedings against them to the Northern District of
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`California under 28 U.S.C. § 1404(a). In the event the Court denies the motion to transfer venue,
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`Apple has filed a contingent motion to sever and transfer. The motions have been fully briefed and
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`are ripe for adjudication.
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`II.
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`MOTION TO TRANSFER VENUE
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`A.
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`Legal Standard
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` Under 28 U.S.C. § 1404(a), a district court may transfer any civil case “[f]or the convenience
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`of the parties and witnesses, in the interest of justice . . . to any other district or division where it
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`might have [originally] been brought.” The decision to transfer a pending case is committed to the
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`sound discretion of the district court. Jarvis Christian Coll. v. Exxon Corp., 845 F.2d 523, 528 (5th
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`Cir. 1988).
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`A threshold inquiry is whether the suit “might have been brought” in the proposed transferee
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`district. In re Volkswagen of Am., Inc., 545 F.3d 304, 312 (5th Cir. 2008) (en banc) (Volkswagen
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`II). Once a defendant satisfies that burden, the Court weighs certain factors to determine if transfer
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`is warranted. Id. n.9; see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-08 (1947). “It is well
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`settled that the party moving for a change of venue bears the burden of demonstrating why the forum
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`should be changed.” Dupre v. Spanier Marine Corp., 810 F. Supp. 823, 825 (S.D. Tex. 1993).
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`Placing the burden on the moving party to show “good cause” for the transfer “reflects the
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`appropriate deference to which the plaintiffs’ choice of venue is entitled.” Volkswagen II, 545 F.3d
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`at 315. The burden on the movant is “significant,” and for a transfer to be granted, the transferee
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`venue must be “clearly more convenient than the venue chosen by the plaintiff.” Id.
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`When considering whether to grant a motion to transfer venue, courts must consider a series
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`of public and private interest factors, none of which is dispositive. Id. “The private interest factors
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`are: ‘(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to
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`secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other
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`practical problems that make trial of a case easy, expeditious, and inexpensive.’” Id. (quoting In re
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`Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (Volkswagen I) (citing Piper Aircraft Co. v.
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`Reyno, 454 U.S. 235, 241 (1981)). “The public interest factors are: ‘(1) the administrative
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`difficulties flowing from court congestion; (2) the local interest in having localized interests decided
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`at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance
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`of unnecessary problems of conflict of laws . . . .’” Id. A court may transfer venue when these
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`factors show that a different venue would be more convenient for the parties involved. Id. at 314.
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`“Although [these factors] are appropriate for most transfer cases, they are not necessarily exhaustive
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`or exclusive.” Id. at 315. Further, “none [of these factors] can be said to be of dispositive weight.”
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`Id. (quoting Action Indus., Inc. v. U.S. Fid. & Guar. Corp., 358 F.3d 337, 340 (5th Cir. 2004)).
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`When transferring venues would simply shift inconveniences, transfer is inappropriate. First Fitness
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`Int’l, Inc. v. Thomas, 533 F. Supp. 2d 651, 658 (N.D. Tex. 2008). Fifth Circuit precedent clarifies
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`that the plaintiff’s choice of venue is not a distinct factor in the § 1404(a) analysis, but “when the
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`transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the plaintiff’s
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`choice should be respected.” Volkswagen II, 545 F.3d at 314-15.
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`The purpose of § 1404(a) “is to prevent the waste of time, energy, and money and to protect
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`litigants, witnesses and the public against unnecessary inconvenience and expense.” Van Dusen v.
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`Barrack, 376 U.S. 612, 616 (1964) (internal quotations omitted). As a result, in addition to the
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`private and public interest factors, “in appropriate circumstances, courts have analyzed the goal of
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`preventing unnecessary inconvenience and expense under the rubric of ‘judicial economy.’” Patent
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`Harbor, LLC v. Twentieth Century Fox Home Entm’t, LLC, 2012 WL 1903875, at *2 (E.D. Tex.
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`May 25, 2012). Further, “courts have consistently held that judicial economy plays a paramount role
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`in trying to maintain an orderly, effective, administration of justice.” Id. (quoting In re Vistaprint
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`Ltd., 628 F.3d 1342, 1346 (Fed. Cir. 2010)) (additional citation omitted); see also 28 U.S.C. §
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`1404(a) (“For the convenience of the parties and witnesses, in the interest of justice . . . “) (emphasis
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`added). In certain cases, the potential “inconvenience” of the parties may be outweighed by judicial
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`economy considerations. See, e.g., Patent Harbor, 2012 WL 1903875 at *2 ; ColorQuick LLC v.
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`Vistaprint Ltd., 2010 WL 5136050, at *7 (E.D. Tex. Jul. 22, 2010), mandamus denied, In re
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`Vistaprint, Ltd., 628 F.3d 1342 (Fed. Cir. 2010) (denying transfer where most convenience factors
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`weighed in favor of transfer since “[t]he parties and the judiciary would benefit from the Court’s
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`familiarity with the patent-in-suit, which would require a substantial investment of time, energy and
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`money to replicate.”)
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`B.
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`Summary of Parties’ Arguments
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`Defendants argue that transferring this case to the Northern District of California is proper
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`because the majority of the public and private interest factors considered by the Fifth Circuit weigh
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`in favor of transfer. See Defs.’ Br. Supp. Mot. Transfer 9, ECF No. 90. Specifically, Defendants
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`contend that the Northern District of California could compel third-party witnesses, would be more
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`convenient for known witnesses, would have easier access to sources of proof, and trial would be
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`more expeditious and less expensive. Id. at 9-10. Defendants argue that Wichita Falls would be an
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`inconvenient forum for all traveling witnesses because Wichita Falls does not have a major airport,
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`and therefore all flights must connect through Dallas/Fort Worth. Id. at 14. In particular, Defendants
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`note that travel time for witnesses located in the State of Washington, in San Diego, California, in
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`Taiwan, and in Korea will be shorter if the trial is held in California rather than in Texas. Id. at 15.
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`In short, Defendants argue that because the parties have extensive connections to the Northern
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`District of California but lack relevant connections to the Northern District of Texas, a transfer of
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`venue is warranted.
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`Summit 6 opposes transfer, arguing that Defendants fail to meet their burden of showing the
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`transferee venue is “clearly more convenient than the venue chosen by Plaintiff.” Pl.’s Resp. Mot.
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`Transfer 17 (quoting Volkswagen II, 545 F.3d at 315), ECF No. 118. Summit 6 contends that
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`Defendants’ motion ignores ties to the Northern District of Texas, and misleadingly focuses on
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`undisclosed “likely” witnesses, unknown “potential” witnesses, and hypothetical third parties. Id.
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`at 1. Summit 6 also argues that the Court’s past experience with two of the three Patents-in-Suit
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`weighs in favor of denying transfer:
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`Defendants pay scant lip-service to the previous Summit 6 case against Facebook,
`Samsung, and others. They minimize the fact that this very Court proceeded all the
`way through pre-trial on two of the three Patents-in-Suit, and went through a liability
`trial, an inequitable conduct trial, and post-trial briefing for one of the Patents-in-
`Suit. Summit 6, LLC v. RIM, Case No. 3:11-cv-0367-O (N.D. Tex. filed Feb. 23,
`2011) (O’Connor, J.).
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`Id. at 3. According to Summit 6, “[t]his Court’s past experience is significant, it substantially
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`overlaps with the issues in the current case, and will likely involve similar or identical evidence as
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`that in the current case. Id. at 9.
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`C.
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`Analysis
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`1.
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`Proper Venue
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`The threshold question in a § 1404(a) analysis is whether the civil action might have been
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`originally brought in the transferee court, here, the Northern District of California. Volkswagen II,
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`545 F.3d at 312. Summit 6 does not dispute that this case could have been originally brought in the
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`Northern District of California. The next question, then, is whether transferring the case would be
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`for the convenience of parties and witnesses, and in the interest of justice. To make this
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`determination, the Court must consider and weigh the private and public interest factors set forth
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`above.
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`2.
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`Private Interest Factors
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`a.
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`Relative Ease of Access to Sources of Proof
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`The first private interest factor is relative ease of access to sources of proof. See Volkswagen
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`II, 545 F.3d at 316. Defendants contend that it will be substantially more convenient to access
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`sources of proof in the proposed transferee venue because the vast majority of sources of proof and
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`documents relevant to the claims of infringement asserted against the majority of Defendants are
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`located in the Northern District of California. Through declarations, Defendants provide evidence
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`that Apple’s and Twitter’s potentially relevant evidence and sources of proof are located in the
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`transferee venue. See App. Supp. Mot. Transfer Ex. 238 (Axelsen Decl.) ¶ 10, ECF No. 91-5
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`(Twitter); id. Ex. 238 (Buckley Decl.) ¶ 4 (Apple). Defendant Motorola’s relevant documents are
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`either in Chicago, Illinois (Motorola’s principal place of business), or in Sunnyvale, California,
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`where it has an office. Id. Ex. 245 (Brown Decl.) ¶ 10. HTC has no documents or proof in
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`California, but instead in Taiwan or Bellevue, Washington. Id. Ex. 249 (Bariault Decl.) ¶¶ 5, 10-11.
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`LGE MobileComm’s relevant U.S.-based documents are located either in San Diego, California (its
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`principal place of business), or in San Jose, California, where it has an office. Id. Ex. 297 (Son
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`Decl.) ¶¶ 12-16.
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`In response, citing declarations submitted by Defendants, Summit 6 emphasizes that HTC
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`has no documents or proof in California, but instead in Taiwan or Bellevue, Washington, and that
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`LGE Inc.’s proof is in Seoul, Korea, not California. Further, Summit 6 argues that “although LG
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`MobileComm states that most of its sources of proof are located in San Jose, California, it appears
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`that at least some of this evidence is actually located in New Jersey.” Pl.’s Resp. Mot. Transfer 19
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`(citing Vertical Computer Sys., Inc. v. LG Electronics MobileComm USA, Inc., 2013 WL 2241947,
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`at *3 (E.D. Tex. May 21, 2013) (noting that LGE argued in support of venue transfer to New Jersey
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`that “several business functions related to LGE MobileComm’s mobile phone business have been
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`transitioning to LG Electronics, U.S.A., Inc. in New Jersey[]”)). Through a declaration, Summit 6
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`provides evidence that its documents are, and have been, in Dallas, Texas since 2009. App. Supp.
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`Resp. Ex. 4 (Pate Decl.) ¶¶ 14, 18-19.
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`“[T]his factor almost invariably turns on which party will most likely have the greater volume
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`of relevant documents and their presumed physical location in relation to the venues under
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`consideration.” Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., 867 F. Supp. 2d 859, 869 (E.D.
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`Tex. 2012). In patent infringement cases, the majority of relevant evidence comes from the accused
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`infringers. In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009). Thus, “the place where the
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`defendant’s documents are kept weighs in favor of transfer to that location.” Id. (citation omitted).
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`The location of Apple’s, Twitter’s, and, in a more limited fashion, LGE MobileComm’s,
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`physical evidence lends weight to transfer. However, Defendants fail to establish that the greater
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`volume and presumed physical location of documents and evidence relevant to the case are
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`concentrated in or near the transferee forum. Defendant HTC Corporation’s documents and other
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`physical evidence relevant to the accused products are all located in Taiwan. App. Supp. Mot.
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`Transfer Ex. 249 (Bariault Decl.) ¶ 5. Defendant HTC America, Inc.’s documents and other physical
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`evidence relevant to the accused products are located in Washington. Id. ¶ 10. Defendant
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`Motorola’s documents and other physical evidence relevant to the accused products are located at
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`its Illinois headquarters and at an office in California. Id. Ex. 245 (Brown Decl.) ¶ 13. LGE Inc.’s
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`documents are located in Seoul, Korea. Id. Ex. 298 (Son Decl.) ¶ 4. Summit 6's documents and
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`other physical evidence are in Texas. App. Supp. Resp. Ex. 4 (Pate Decl.) ¶¶ 14, 18-19.
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`Based on the evidence presented, where sources of proof originate from varied locations,
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`including California, Washington, Texas, Illinois, Taiwan, and perhaps Korea and New Jersey, the
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`Court concludes this factor is neutral. See Frito-Lay, 867 F. Supp. 2d at 869 (holding that where
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`“the sources of proof originate from varied locations, this factor is neutral.”); Perritt v. Jenkins, 2011
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`WL 3511468, at *3 (E.D. Tex. July 18, 2011) (“Because sources of proof originate from varied
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`locations, this factor is neutral.”); see also Konami Dig. Entm’t Co. Ltd. v. Harmonix Music Sys.,
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`2009 WL 781134, at *4 (E.D. Tex. Mar. 23, 2009) (“While Defendants point to [the transferee
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`district] as the location of significant sources of proof, they ignore the remaining sources of proof
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`which originate from other locations.”).
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`Further, the Court agrees with Summit 6 that Defendants’ “conclusory statements that [their]
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`documents related to research, design, development, testing and marketing are located in California
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`(or Taiwan or Washington) are too vague to meet their burden.” See Pl.’s Resp. Mot. Trans. 16. See
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`generally Core Wireless Licensing, S.A.R.L. v. Apple, Inc., 2013 WL 682849, at *3 (E.D. Tex. Feb.
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`22, 2013) (holding as too speculative Apple, Inc.’s statement that “virtually all Apple business
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`documents and records relating to the research, design, development, marketing strategy, and product
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`revenue related to the Accused products are located in or near Cupertino.”), mandamus denied, In
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`re Apple Inc., 743 F.3d 1377 (Fed. Cir. 2014). The declarations filed in this case regarding sources
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`of proof and documents are equally conclusory and vague, making it difficult for the Court to weigh
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`this factor.
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`In short, Defendants have not shown that the Northern District of California is clearly a more
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`convenient forum to access sources of proof for all parties. Accordingly, this factor is neutral.
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`b.
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`Cost of Attendance for Willing Witnesses
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`The second private interest factor is the cost of attendance of willing witnesses. See
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`Volkwagen II, 545 F.3d at 317. “[I]t is the convenience of non-party witnesses, rather than of party
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`witnesses, that is more important and accorded greater weight in a transfer of venue analysis.” Frito
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`Lay, 867 F. Supp. 2d at 871. The Fifth Circuit established the “100-mile” rule to determine the
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`convenience of the transferee district to the witnesses and parties. “When the distance between an
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`existing venue for trial of a matter and a proposed venue under § 1404(a) is more than 100 miles,
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`the factor of the convenience to witnesses increases in direct relationship to the additional distance
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`to be traveled.” Volkswagen I, 371 F.3d at 204-06. Where witnesses are from widely scattered
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`locations, a trial court should not consider its “central location . . . in the absence of witnesses within
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`the plaintiff’s choice of venue.” In re Genentech, 566 F.3d at 1344.
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`Defendants have identified over twenty party witnesses likely to possess specific knowledge
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`relevant to the accused products who reside in the Northern District of California. Defs.’ Br. Supp.
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`Mot. Transfer 11-15. Defendants also list Lisa T. Wood, the first named inventor of all three
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`Patents-in-Suit, who resides in the transferee district. Defendants further assert: “To the extent that
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`Summit 6's infringement allegations require Defendants to call trial witnesses with relevant
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`knowledge of the MMS functionalities within the Android operating system used in some of
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`Defendants’ accused products (e.g., Google employees), such Google employees are believed to
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`reside in the Northern District of California.” Id. at 12.
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`In response, Summit 6 notes that Defendants focus on the convenience of party witnesses,
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`rather than non-party witnesses. Pl.’s Resp. Mot. Transfer 14-15. Summit 6 also accuses Defendants
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`of “cherry-pick[ing] a large number of redundant witnesses, [and] ignoring those with highly relevant
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`information outside of California. For example, Motorola neglects to mention that one of the
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`witnesses in its initial disclosure (Andy Koziol) is located in Chicago, Illinois[.]” Id. at 13. Summit
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`6 lists third-party witnesses who do not reside in California, including one of the inventors who lives
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`in the Czech Republic, the attorney who prosecuted two of the Patents-in-Suit in front of the United
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`States Patent and Trademark Office who resides in Reston, Virginia, and several customers and
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`licensees that use Summit 6's inventions that are in Texas. App. Supp. Resp. Ex. 4 (Pate Decl.) 2-3,
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`ECF No. 118-1.
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` Inconvenience to the party-witnesses residing in the Northern District of California will
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`increase as the distance they must travel increases, and traveling to a local court would be more
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`convenient than traveling to Texas. See Volkswagen I, 371 F.3d at 204-06. While Summit 6 has
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`pointed to a handful of non-party witnesses who will also be inconvenienced, overall the Court
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`Case 7:14-cv-00014-O Document 143 Filed 09/10/14 Page 14 of 30 PageID 2847
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`concludes that this factor weighs in favor of transfer. See generally In re Genentech, 566 F.3d at
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`1348 (reversing trial court’s decision to deny venue transfer from Eastern District of Texas to
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`Northern District of California, in part, due to “a substantial number of witnesses with material and
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`relevant information residing in either the transferee venue or the state of California who will be
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`unnecessarily inconvenienced in having to travel to Texas to testify.”).
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`c.
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`Availability of Compulsory Process to Secure Attendance of
`Witnesses
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`Federal Rule of Civil Procedure 45(b)(2) allows a federal court to compel a witness’
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`attendance at a trial or hearing by subpoena. The Court’s subpoena power is limited by Rule
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`45(b)(3), to those witnesses who work or reside less than 100 miles from the courthouse. See
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`Volkswagen II, 545 F.3d at 316. This factor would weigh in favor of transfer if the majority of non-
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`party witnesses are located in the Northern District of California. See id. The Court gives more
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`weight to those specifically identified witnesses and affords less weight to vague assertions that
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`witnesses are likely located in a particular forum. Core Wireless Licensing, 2013 WL 682849, at *3.
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`“The factor will weigh the heaviest in favor of transfer when a transferee venue is said to have
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`‘absolute subpoena power’ [which is] subpoena power for both depositions and trials.” Eolas
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`Techs., Inc. v. Adobe Sys., Inc., 2010 WL 3835762, at *5 (E.D. Tex. Sept. 28, 2010), mandamus
`
`denied, In re Google Inc., 412 F. App’x 295 (Fed. Cir. 2011) (citations omitted and punctuation
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`altered).
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`As described above, the parties have identified potential third-party witnesses located not just
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`in California, but elsewhere in the United States and in foreign countries. As neither district would
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`have absolute subpoena power, on the record presented, the Court concludes this factor is neutral.
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`Case 7:14-cv-00014-O Document 143 Filed 09/10/14 Page 15 of 30 PageID 2848
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`See Eolas Techs., Inc., 2010 WL 3835762, at *5 (finding this factor neutral where neither district
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`would have absolute subpoena power).
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`d.
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`All Practical Problems that Make Trial of Case Easy, Expeditious,
`and Inexpensive
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`In addition to repeating prior arguments concerning convenience of witnesses and location
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`of sources of proof, Defendants argue that trying this case in the Northern District of California
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`would resolve many practical problems, including that Wichita Falls does not have an international
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`airport, while the transferee district can be accessed via three international airports. Defendants also
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`point out that their operations will be disrupted if their employees have to travel to Wichita Falls.
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`Defs.’ Br. Supp. Mot. Transfer 19-21. Summit 6 argues that concerns of judicial economy weigh
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`against transfer. Pl.’s Resp. Mot. Transfer 9-12. For the reasons set forth in a separate section
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`below, see infra at 19-22, while Defendants raise valid practical problems, the Court concludes that
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`this factor weighs against transfer.1 See PersonalWeb Techs., LLC v. NEC Corp. of Am., Inc., 2013
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`WL 960033, at *5 (E.D. Tex. Mar. 21, 2013) (citing Volkswagen II, 566 F.3d at 1351) (“Practical
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`problems include those that are rationally based on judicial economy.”)
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`2.
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`The Public Interest Factors
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`a.
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`Court Congestion
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`To determine court congestion, “courts commonly consider the Federal Judicial
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`1 In the Joint Report for Contents of Scheduling Order, HTC, LGE and Motorola request that, in the
`event the Court denies the current motion, the Court preside over the trial of this civil action in Dallas or Fort
`Worth, thereby minimizing the additional inconvenience of having witnesses travel from Dallas/Fort Worth
`International Airport to Wichita Falls. See Joint Report at 4-5, ECF No. 92. The Court declines to address
`the issue of intra-district transfer at this time, though the parties may re-urge it at a later time. In the interim,
`the Court will endeavor to accommodate out-of-town counsel by permitting them to confer on locations for
`pretrial conferences. The Court notes that United States Magistrate Judge Robert K. Roach has presided over
`several preliminary matters and has provided the option for telephonic discovery hearings.
`
`15
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`

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`Case 7:14-cv-00014-O Document 143 Filed 09/10/14 Page 16 of 30 PageID 2849
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`caseload statistics.” USPG Portfolio Two, LLC v. John Hancock Real Estate Fin., Inc., 2011 WL
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`1103372, at *5 (N.D. Tex. Mar. 25, 2011) (Fitzwater, J.). Court congestion can be measured by
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`“whether a trial may be speedier in another court because of a less crowded docket.” In re
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`Genentech, 566 F.3d at 1347. The Federal Circuit has described court congestion as “the most
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`speculative [factor]” since “case-disposition statistics may not always tell the whole story.” Id.
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`The evidence presented by both parties shows that the median time to trial in the Northern
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`District of California (2.3 years) is greater than in the Northern District of Texas (1.68 years). See
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`App. Supp. Resp. Ex. 7 (March 2013 U.S. District Courts Chart), ECF No. 118-1; App. Supp. Mot.
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`Transfer 73-75 (March 2013 U.S. District Courts Chart), ECF No.91-1. Though Defendants also
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`cite statistics for the median time interval from filing to disposition to argue this factor is neutral,
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`the median time to disposition is of limited relevance. See In re Genentech, 566 F.3d at 1347 (in
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`patent infringement case, court congestion can be measured by “whether a trial may be speedier in
`
`another court because of a less crowded docket.”) (emphasis added). Summit 6 also correctly notes
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`that this Court has set the case for trial on November 30, 2015, which is less time than the