Case 6:20-cv-00636-ADA Document 117 Filed 07/29/21 Page 1 of 13
`PUBLIC VERSION
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`6-20-CV-00636-ADA
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`§§§§§§§§
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`DEMARAY LLC,
`Plaintiff,
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`v.
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`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA,
`INC., SAMSUNG SEMICONDUCTOR,
`INC., and SAMSUNG AUSTIN
`SEMICONDUCTOR, LLC,
`Defendant.
`
`ORDER DENYING MOTION TO TRANSFER VENUE
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`Before the Court is Defendants Samsung Electronics Co., Ltd., Samsung Electronics
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`America, Inc., Samsung Semiconductor, Inc., and Samsung Austin Semiconductor, LLC’s
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`(collectively “Samsung”) Motion to Transfer venue to the Northern District of California pursuant
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`to 28 U.S.C. § 1404(a) (“Motion to Transfer”). ECF No. 40. After careful consideration of the
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`parties’ briefs and the applicable law, the Court DENIES Samsung’s Motion to Transfer.
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`I. BACKGROUND
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`Plaintiff Demaray LLC (“Demaray”) filed this lawsuit on July 14, 2020, alleging that
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`Samsung infringes U.S. Patent Nos. 7,544,276 and 7,381,657 (the “Asserted Patents”) by
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`“configure[ing] RMS [reactive magnetron sputtering] reactors, including, but not limited to
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`reactors in the Endura product line from [third-party] Applied Materials, Inc. (“Applied
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`Materials”) for deposition of layers . . . in its semiconductor products.” ECF No. 1 at ¶ 28. On the
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`same day, Demaray filed another lawsuit in this Court against Intel Corporation (“Intel”) for
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`infringing the same Asserted Patents by configuring the same reactors from Applied. Demaray
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`LLC v. Intel Corp., Case No. 6-20-cv-634-ADA, ECF No. 1 at ¶ 25. After filing an Answer (ECF
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`No. 21) to Demaray’s Complaint, on November 9, 2020 Samsung filed this Motion to Transfer
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`venue under 28 U.S.C. § 1404(a), requesting that this case be transferred to the Northern District
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`of California (“NDCA”). ECF No. 40.
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`Demaray is a limited liability company incorporated in Delaware and based in Silicon
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`Valley. ECF No. 1 at ¶ 4; ECF No. 40 at Ex. B. Samsung Electronics Co., Ltd. (“SEC”) is a Korean
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`company with its principal offices in Korea. ECF No. 40 at 4. Samsung Electronics America, Inc.
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`(“SEA”) is a wholly-owned subsidiary of SEC and incorporated in New York, with its
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`headquarters in New Jersey and a place of business in Mountain View, California, within the
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`NDCA. Id. Samsung Semiconductor, Inc. (“SSI”) is a wholly-owned subsidiary of SEA and is a
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`California corporation headquartered in San Jose, California. Id. Samsung Austin Semiconductor,
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`LLC (“SAS”) is a wholly-owned U.S. subsidiary of SSI that operates two fabs in Austin, Texas,
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`within the Western District of Texas (“WDTX”). Id. at 5. “In its Austin fabs, SAS uses a number
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`of RMS reactors purchased from Applied.” Id. Third-party Applied has its principal place of
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`business in Santa Clara, California, and also has a large manufacturing facility in Austin, Texas.
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`Id.; ECF No. 50 at 6.
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`II. LEGAL STANDARD
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`In patent cases, motions to transfer under 28 U.S.C. § 1404(a) are governed by the law of
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`the regional circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). 28 U.S.C.
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`Section 1404(a) provides that, “[f]or the convenience of parties and witnesses, in the interest of
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`justice, a district court may transfer any civil action to any other district or division where it might
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`have been brought or to any district or division to which all parties have consented.” Id. “Section
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`1404(a) is intended to place discretion in the district court to adjudicate motions for transfer
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`according to an ‘individualized, case-by-case consideration of convenience and fairness.’” Stewart
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`Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612,
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`622 (1964)).
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`“The preliminary question under [Section] 1404(a) is whether a civil action ‘might have
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`been brought’ in the [transfer] destination venue.” In re Volkswagen, Inc., 545 F.3d 304, 312 (5th
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`Cir. 2008) (“Volkswagen II”). If the destination venue would have been a proper venue, then “[t]he
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`determination of ‘convenience’ turns on a number of public and private interest factors, none of
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`which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358
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`F.3d 337, 340 (5th Cir. 2004). The private factors include: “(1) the relative ease of access to sources
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`of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the
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`cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a
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`case easy, expeditious and inexpensive.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)
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`(“Volkswagen I”) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1982)). The public
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`factors include: “(1) the administrative difficulties flowing from court congestion; (2) the local
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`interest in having localized interests decided at home; (3) the familiarity of the forum with the law
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`that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws of the
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`application of foreign law.” Id at 203. Courts evaluate these factors based on the situation that
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`existed at the time of filing, rather than relying on hindsight knowledge of the defendant’s forum
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`preference. Hoffman v. Blaski, 363 U.S. 335, 343 (1960). The weight the Court gives to each of
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`these assorted convenience factors will necessarily vary from case to case. Burbank International,
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`Ltd. v. Glf Consol. International, Inc., 441 F. Supp. 819, 821 (N.D. Tex. 1977).
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`The burden to prove that a case should be transferred for convenience falls squarely on the
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`moving party. In re Vistaprint Ltd., 628 F.3d 1342, 1346 (Fed. Cir. 2010). The burden that a
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`movant must carry is not that the alternative venue is more convenient, but that it is clearly more
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`convenient. Volkswagen II, 545 F.3d at 314 n.10. While “clearly more convenient” is not explicitly
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`equivalent to “clear and convincing,” the moving party “must show materially more than a mere
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`preponderance of convenience, lest the standard have no real or practical meaning.” Quest NetTech
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`Corp. v. Apple, Inc., No. 2:19-cv-118, 2019 WL 6344267, at *7 (E.D. Tex. Nov. 27, 2019).
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`III. ANALYSIS
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`The threshold determination under the Section 1404 analysis is whether this case could
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`initially have been brought in the destination venue — the Northern District of California. Neither
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`party contests the fact that venue is proper in the NDCA and that this case could have been brought
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`there. Thus, the Court will proceed with its analysis of the private and public interest factors.
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`A. The Private Interest Factors Weigh Against Transfer.
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`i. The Relative Ease of Access to Sources of Proof
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`“In considering the relative ease of access to proof, a court looks to where documentary
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`evidence, such as documents and physical evidence, is stored.” Fintiv Inc. v. Apple Inc., No. 6:18-
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`cv-00372, 2019 WL 4743678, at *2 (W.D. Tex. Sept. 10, 2019). “[T]he question is relative ease
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`of access, not absolute ease of access.” In re Radmax, 720 F.3d 285, 288 (5th Cir. 2013) (emphases
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`in original). “In patent infringement cases, the bulk of the relevant evidence usually comes from
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`the accused infringer. Consequently, the place where the defendant’s documents are kept weighs
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`in favor of transfer to that location.” In re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir. 2020) (citing
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`In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009)).
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`Although the physical location of electronic documents does affect the outcome of this
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`factor under current Fifth Circuit precedent (see Volkswagen II, 545 F.3d at 316), this Court has
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`stressed that the focus on physical location of electronic documents is out of touch with modern
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`patent litigation. Fintiv, 2019 WL 4743678, at *8; Uniloc 2017 LLC v. Apple Inc., 6-19-CV-00532-
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`ADA, 2020 WL 3415880, at *9 (W.D. Tex. June 22, 2020) (“[A]ll (or nearly all) produced
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`documents exist as electronic documents on a party’s server. Then, with a click of a mouse or a
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`few keystrokes, the party [can] produce[] these documents” and make them available at almost
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`any location). Other courts in the Fifth Circuit similarly found that access to documents that are
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`available electronically provides little benefit in determining whether a particular venue is more
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`convenient than another. See Uniloc USA Inc. v. Samsung Elecs. Am., No. 2:16-cv-642-JRG, 2017
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`U.S. Dist. LEXIS 229560, at *17 (E.D. Tex. Apr. 19, 2017) (“Despite the absence of newer cases
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`acknowledging that in today’s digital world computer stored documents are readily moveable to
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`almost anywhere at the click of a mouse, the Court finds it odd to ignore this reality in favor of a
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`fictional analysis that has more to do with early Xerox machines than modern server forms.”).
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`Samsung argues that documents from third-party Applied would be critical to this action
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`since Demaray alleged that Samsung’s configuration of Applied RMS reactors infringes the
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`Asserted Patents, and that the Applied documents relevant to this accused technology reside in
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`NDCA. ECF No. 40 at 11. Samsung provides testimony that “certain Applied documents would
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`not be accessible by Austin employees; those with access are in NDCA.” ECF No. 88 at 3-4.
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`However, Demaray points out that Applied’s Austin employees can actually have access to those
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`documents – they simply need permission to remotely access those materials. ECF No. 105 at 1.
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`Further, testimony shows that Applied’s Austin facility is responsible for the volume
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`manufacturing of all of its commercial PVD chambers. Id.; ECF No. 50 at 6. Therefore, the
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`required Applied documents for manufacturing are necessarily provided to its Austin employees.
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`Further, Samsung does not dispute that its only two domestic fabs are located in Austin,
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`operated by SAS, which performs semiconductor fabrication or manufacturing. ECF No. 50 at 5.
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`Thus, the accused reactors and documents related to manufacturing are necessarily located in
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`Austin. The parties do not dispute that other documents are spread across the world (e.g., in Korea)
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`and are easily accessible from this District or another location. Id. at 7; ECF No. 88 at 4. Therefore,
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`Court finds this factor weighs slightly against transfer.
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`ii. The Availability of Compulsory Process to Secure the Attendance of Witnesses
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`In this factor, the Court considers particularly non-party witnesses whose attendance may
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`need to be secured by a court order. Fintiv, 2019 WL 4743678, at *5 (citing Volkswagen II, 545
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`F.3d at 316); Uniloc, 2020 WL 3415880, at *10. This factor “weigh[s] heavily in favor of transfer
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`when more third-party witnesses reside within the transferee venue than reside in the transferor
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`venue.” In re Apple, Inc., 581 F. App’x. 886, 889 (Fed. Cir. 2014). Under the Federal Rules, a
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`court may subpoena a witness to attend trial only (a) “within 100 miles of where the person resides,
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`is employed, or regularly transacts business in person”; or (b) “within the state where the person
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`resides, is employed, or regularly transacts business in person, if the person . . . is commanded to
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`attend a trial and would not incur substantial expense.” Fed. R. Civ. P. 45(c)(1)(A), (B)(ii);
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`Gemalto S.A. v. CPI Card Grp. Inc., No. 15-CA-0910, 2015 WL 10818740, at *4 (W.D. Tex. Dec.
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`16, 2015). As party witnesses almost invariably attend trial willingly, “[w]hen no party has alleged
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`or shown any witness’s unwillingness, a court should not attach much weight to the compulsory
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`process factor.” CloudofChange, LLC v. NCR Corp., No. 6-19-cv-00513 (W.D. Tex. Mar. 17,
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`2020) (citation omitted). The inconvenience of foreign witnesses, who will have to travel a
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`substantial distance to be present in any U.S. court, is weighted less heavily than that of domestic
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`witnesses. See In re Genentech, Inc., 566 F.3d 1338, 1344 (Fed. Cir. 2009) (citing Neil Bros. Ltd.
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`v. World Wide Lines, Inc., 425 F. Supp. 2d 325, 329 (E.D. N.Y. 2006) (traveling from the United
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`Kingdom to New York was only marginally more convenient than traveling to Tennessee)); Bionx
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`Implants, Inc. v. Biomet, Inc., 1999 U.S. Dist. LEXIS 8031 at 3 (traveling from Finland to Indiana
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`was not more inconvenient than traveling to New York)).
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`Samsung argues that Applied employees will be critical to this action since they design and
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`develop the technology at issue, and that they are with the subpoena power of NDCA but outside
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`of this Court’s subpoena power. ECF No. 40 at 12. However, Samsung does not deny that Applied
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`has indemnity obligations to Samsung and Applied has been coordinating with Samsung and Intel
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`on litigation strategies, including filing multiple declaratory judgment (“DJ”) actions against
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`Demaray in NDCA and inter parte review (“IPR”) petitions regarding the Asserted Patents before
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`the Patent Trial and Appeal Board (“PTAB”). ECF No. 40 at 1; No. 50 at 2 and 9. Samsung has
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`provided no evidence that Applied witnesses will not voluntarily participate in this action,
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`especially after Mr. Keith Miller, a Director of Engineering at Applied, has voluntarily provided a
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`declaration in support of Samsung’s Motion to Transfer. See ECF No. 38, Ex. 5. Further, Samsung
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`has not provided persuasive reason why Applied’s Austin employees, who are within this Court’s
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`subpoena power, cannot be trial witnesses.
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`Samsung also identifies Dr. Ravi Mullapudi, one of the inventors who resides in NDCA,
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`as a potential third-party witness. Further, Samsung identifies a list of other potential third-party
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`witnesses in NDCA, including a number of former Applied and/or Applied Komatstu (“AKT”)
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`employees who are likely witnesses to Samsung’s license defense based on a sales and relationship
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`agreement (“SRA”), and other former Symmorphix employees with potential knowledge to
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`Samsung’s defenses. ECF No. 88 at 2-3. Although Dr. Mullapudi’s testimony may be useful to the
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`trial, Samsung does not provide any persuasive arguments why former Applied and/or AKT
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`employees or former Symmorphix employees would be necessary at the trial. Indeed, Demaray
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`points out that some of the key figures involved in the SRA are outside of NDCA, including those
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`who live in North Carolina, New York, and South Carolina. ECF No. 105 at 2-3.
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`In view of the above, the Court finds this factor is neutral.
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`iii. The Cost of Attendance for Willing Witnesses
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`“The convenience of witnesses is the single most important factor in the transfer analysis.”
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`Fintiv, 2019 WL 4743678, at *6. “Courts properly give more weight to the convenience of non-
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`party witnesses than to party witnesses.” Netlist, Inc. v. SK Hynix Am. Inc., 2021 U.S. Dist. LEXIS
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`47242 at *19 (W.D. Tex. Feb. 2, 2021); see Moskowitz Family LLC v. Globus Med., Inc., No. 6:19-
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`cv-00672-ADA, 2020 WL 4577710, at *4 (W.D. Tex. Jul. 2, 2020).
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`As a preliminary matter, given typical time limits at trial, the Court does not assume that
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`all of the party and third-party witnesses listed in Section 1404(a) briefing will testify at trial.
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`Fintiv, 2019 WL 4743678, at *6. Rather, in addition to the party’s experts, the Court assumes that
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`no more than a few party witnesses—and even fewer third-party witnesses, if any—will testify
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`live at trial. Id. Therefore, long lists of potential party and third-party witnesses do not affect the
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`Court’s analysis for this factor. Id.
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`The parties identify three categories of potential willing witnesses: those from Applied,
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`those from Samsung, and the inventors of the Asserted Patents. Samsung contends that witnesses
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`from Applied are crucial since the alleged infringement involves use of Applied technology and
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`identifies a list of Applied individuals located in NDCA. ECF No. 40 at 9. Samsung further
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`contends that “Applied personnel in Austin do not have specific knowledge about the design,
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`development, marketing, or sales of the RMS reactors that would be relevant to this case as that
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`facility is dedicated to manufacturing.” Id. at 10. But Demaray points out that Applied’s Austin
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`manufacturing personnel are involved with Samsung’s accused use of the claimed reactor
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`configurations and Applied’s Austin office provided support staff for the Samsung relationship.
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`ECF No. 50 at 9-10.
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`As to potential Samsung witnesses, Samsung’s only two domestic fabs are located in
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`Austin. Samsung admits that the use of allegedly infringing processes are developed by engineers
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`in Korea before being transferred to SAS in Austin. ECF No. 40. Although the Samsung contends
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`that the involved processes are performed in Korea at over 12 times the scale as in Austin, it does
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`not change the fact that SAS employees in Austin are knowledgeable about the allegedly infringing
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`process and are qualified to testify about those processes at trial.
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`Finally, the parties do not dispute that there are four named inventors: Dr. Demaray and
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`Dr. Ravi Mullapudi, who both live in NDCA; Dr. Hongmei Zhang, who lives in Boston; and Mr.
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`Mukundan Narasimhan, who lives in India. ECF No. 40 at 3-4, No. 50 at 10. Dr. Demaray is a
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`willing witness who has committed to attend trial. ECF No. 50 at 10. Dr. Mullapudi and Zhang
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`might attend the trial, but there is no indication that Mr. Narasimhan is willing to testify or that he
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`would attend the trial. In the event that Dr. Zhang attends the trial, he lives in Boston and is thus
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`closer to this District than NDCA. Id.
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`Accordingly, the Court finds that this factor is also neutral.
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`iv. All Other Practical Problems That Make Trial of a Case Easy, Expeditious and
`Inexpensive
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`When considering the private interest factors, courts must consider “all other practical
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`problems that make trial of a case easy, expeditious and inexpensive.” Volkswagen II, 545 F.3d at
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`314. “Particularly, the existence of duplicative suits involving the same or similar issues may
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`create practical difficulties that will weigh heavily in favor or against transfer.” PersonalWeb
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`Techs., LLC v. NEC Corp. of Am., Inc., No. 6:11-cv-655, 2013 WL 9600333, at *5 (E.D. Tex. Mar.
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`21, 2013). The interests of justice may be best served by transferring ancillary matters pending in
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`other forums to the forum of the main action, particularly if the main action is complex. Bank of
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`Texas v. Computer Statistics, Inc., 60 F.R.D. 43, 45 (S. D. Tex. 1973).
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`On the same day Demaray filed this action against Samsung, it also filed another lawsuit
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`against Intel in this Court (Demaray LLC. v. Intel Corporation, No. 6:20-cv-00634-ADA), which
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`involves the same patents and the same Applied technology. These two cases have been
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`coordinated together in all pretrial proceedings before this Court. The parties do not dispute that
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`transferring this case, while keeping the Intel case, would be grossly inefficient. SynKloud Techs.,
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`LLC v. Dropbox, Inc., Case No. 6:19-cv-00525-ADA, 2020 WL 2494574 at *5 (W. D. Tex. 2020)
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`(“[J]udicial economy favors having the infringement of the same patent considered by one
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`judge.”).
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`Further, Applied has filed four IPRs on behalf of Samsung and Intel to challenge the
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`Asserted Patents before the PTAB. The parties do not dispute that if this case is transferred to
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`NDCA, it will likely be stayed pending the IPRs, and the stay would delay the trial for this case
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`for years. ECF No. 50 at 12-13.
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`Samsung argues that judicial economy favors transfer to NDCA because Applied’s DJ
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`action is currently pending in NDCA. However, Applied’s DJ action was filed after Demaray filed
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`its actions against Intel and Samsung in this Court. A defendant (or a third-party coordinating with
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`the defendant) cannot manufacture “convenience” by simply filing a DJ action at its desired venue
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`after the plaintiff filed a complaint at its venue of choice and seeking transfer of venue based on
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`the later-filed DJ action.
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`Because parallel litigation concerning the same asserted patents and the same technology
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`is pending in this District, the Court finds that this factor strongly weighs against transfer.
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`B. The Public Interest Factors Weigh Against Transfer.
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`i. Administrative Difficulties Flowing From Court Congestion
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`The relevant inquiry under this factor is actually “[t]he speed with which a case can come
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`to trial and be resolved.” Genentech, 566 F.3d at 1347. A faster average time to trial means more
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`efficient and economical resolutions of the claims at issue.
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`Demaray points out, and Samsung does not dispute, that for patent cases since 2016, the
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`average time to trial in NDCA was 34.1 months – three times longer than the time to trial that
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`remains in this case’s schedule. ECF No. 50 at 13. If this case is transferred to NDCA and is stayed
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`pending resolution of the IPRs, the time to trial for this case would be even longer. Further, this
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`forecast has not taken into account the trial backlog in NDCA caused by courthouse closures due
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`to the Covid-19 pandemic beginning in March 2020. While the parties have provided no evidence
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`that courthouses in NDCA are fully open for jury trials, this Court is experienced and fully capable
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`of conducting jury trials in the Covid-19 pandemic. Since the Covid-19 pandemic began in March
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`2020, this Court has conducted at least seven jury trials, six of which are patent jury trials. In the
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`first half of 2021 alone, this Court has already conducted five patent jury trials in the Waco
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`courthouse.
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`Considering the relative court congestion in NDCA, the Court finds that this factor weighs
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`strongly against transfer.
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`ii. Local Interest in Having Localized Interests Decided at Home
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`Under this factor, the Court must evaluate whether there is a local interest in deciding local
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`issues at home. Volkswagen II, 545 F.3d at 317. “A local interest is demonstrated by a relevant
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`factual connection between the events and the venue.” Word to Info, Inc. v. Facebook, Inc., No.
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`3:14-cv-04387-K, 2015 WL 13870507, at *4 (N.D. Tex. Jul. 23, 2015).
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`Here, Demaray is a Delaware company based in NDCA. Samsung’s only two domestic
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`fabs are located in this District. Although Applied is headquartered in NDCA, it has significant
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`presence in this District, manufacturing its PVD chambers in Austin. While Samsung argues that
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`Applied designs and develops the involved reactors in NDCA, Applied is an unnamed third-party
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`and it is Samsung’s alleged infringing use of the reactors that is at the core of this action. Therefore,
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`the Court finds this factor weighs slightly against transfer.
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`iii. Familiarity of the Forum With the Law That will Govern the Case
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`Samsung argues that California law will govern Samsung’s license and ownership defenses
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`because its contract with Applied was executed in California. ECF No. 40 at 14. However,
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`Demaray points out that there is clear case precedent that would guide this Court in deciding
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`Samsung’s defenses. ECF No. 50 at 15. Further, this Court is confident that the thorough briefing
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`and arguments that will be presented by the very competent counsel on both sides would assist the
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`Court to understand the relevant law and rule on the issue correctly. Accordingly, the Court finds
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`that this factor is neutral.
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`iv. Avoidance of Unnecessary Problems of Conflict of Laws or in the Application of
`Foreign Law
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`Both parties agree that this factor is neutral. ECF No. 40 at 14, n.2; ECF No. 50 at 15. The
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`Court also agrees.
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`IV. CONCLUSION
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`Having considered the Section 1404(a) factors, the Court finds that Samsung has not met
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`its significant burden to demonstrate that the NDCA is “clearly more convenient” than this District.
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`Therefore, the Court DENIES Samsung’s Motion to Transfer.
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`SIGNED this 1st day of July, 2021.
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`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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