`
`Case 6:20-cv-00693-ADA Document 85 *SEALED* Filed 07/09/21 Page 1 of 19Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 1 of 19
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`TRILLER, INC.,
`Plaintiff,
`
`v.
`
`BYTEDANCE, LTD., BYTEDANCE,
`INC., TIKTOK, INC., TIKTOK PTE.
`LTD.,
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`6-20-CV-00693-ADA
`
`ORDER GRANTING MOTION TO TRANSFER
`
`Came on for consideration this date is Defendants’ Motion to Transfer to the Northern
`
`District of California (“NDCA”) pursuant to 28 U.S.C. § 1404(a). After careful consideration of
`
`the Motion, the Parties’ briefs, and the applicable law, the Court is of the opinion that the Motion
`
`should be GRANTED.
`
`I. INTRODUCTION
`
`A party seeking a transfer to an allegedly more convenient forum carries a significant
`
`burden. Babbage Holdings, LLC v. 505 Games (U.S.), Inc., No. 2:13-CV-749, 2014 U.S. Dist.
`
`LEXIS 139195, at *12–14 (E.D. Tex. Oct. 1, 2014) (stating the movant has the “evidentiary
`
`burden” to establish “that the desired forum is clearly more convenient than the forum where the
`
`case was filed”). The burden that a movant must carry for a Section 1404(a) transfer is not that
`
`the alternative forum is more convenient, but that it is clearly more convenient. In re
`
`Volkswagen, Inc., 545 F.3d 304, 314 n.10 (5th Cir. 2008) (hereinafter “Volkswagen II”).
`
`Defendants agreed to jurisdiction and venue in the Western District of Texas (“WDTX”) “for the
`
`purposes of this case only,” or “[t]o streamline proceedings.” Defs.’ Joinder, ECF No. 45-1 at ¶ 1
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 2 of 19
`
`n.1. Defendants subsequently moved to have this case transferred to NDCA, and the Court finds
`
`that transfer to NDCA is warranted.
`
`II. LEGAL STANDARD
`
`Section 1404(a) provides that, for the convenience of parties and witnesses, a district
`
`court may transfer any civil action to any other district or division where it might have been
`
`brought or to any district or division to which all parties have consented. “Section 1404(a) is
`
`intended to place discretion in the district court to adjudicate motions for transfer according to an
`
`‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v.
`
`Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
`
`The party seeking a transfer under Section 1404(a) must show good cause. Volkswagen, 545 F.3d
`
`at 315 (quoting Humble Oil & Refin. Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir.
`
`1963)). In this context, showing good cause requires the moving party to “clearly demonstrate
`
`that a transfer is for the convenience of parties and witnesses [and] in the interest of justice.” Id.
`
`(cleaned up) (quoting 28 U.S.C. § 1404(a)). When the movant fails to demonstrate that the
`
`proposed transferee venue is “clearly more convenient” than the plaintiff's chosen venue, “the
`
`plaintiff's choice should be respected.” Id. Conversely, when the movant demonstrates that the
`
`proposed transferee venue is clearly more convenient, the movant has shown good cause and the
`
`court should transfer the case. Id. The “clearly more convenient” standard is not equal to a clear-
`
`and-convincing-evidence standard, but it is nevertheless “materially more than a mere
`
`preponderance of convenience.” Quest NetTech Corp. v. Apple, Inc., No. 2:19-CV-00118, 2019
`
`WL 6344267, at *7 (E.D. Tex. Nov. 27, 2019).
`
`“The preliminary question under § 1404(a) is whether a civil action ‘might have been
`
`brought’ in the destination venue.” Volkswagen II, 545 F.3d at 312. If so, in the Fifth Circuit, the
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 3 of 19
`
`“[t]he determination of ‘convenience’ turns on a number of public and private interest
`
`factors, none of which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. &
`
`Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004). The private factors include: “(1) the relative
`
`ease of access to sources of proof; (2) the availability of compulsory process to secure the
`
`attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other
`
`practical problems that make trial of a case easy, expeditious and inexpensive.” In re
`
`Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (Volkswagen I) (citing to Piper Aircraft Co.
`
`v. Reyno, 454 U.S. 235, 241 n.6 (1982)). The public factors include: “(1) the administrative
`
`difficulties flowing from court congestion; (2) the local interest in having localized interests
`
`decided at home; (3) the familiarity of the forum with the law that will govern the case; and
`
`(4) the avoidance of unnecessary problems of conflict of laws of the application of foreign
`
`law.” Id. Courts evaluate these factors based on “the situation which existed when suit was
`
`instituted.” Hoffman v. Blaski, 363 U.S. 335, 343 (1960).
`
`Although these factors “are appropriate for most transfer cases, they are not
`
`necessarily exhaustive or exclusive,” and no single factor is dispositive. Volkswagen II, 545
`
`F.3d at 315. Moreover, courts are not to merely tally the factors on each side. In re Radmax,
`
`Ltd., 720 F.3d 285, 290 n.8 (5th Cir. 2013). Instead, courts “must make factual determinations
`
`to ascertain the degree of actual convenience, if any, and whether such rises to the level
`
`of ‘clearly more convenient.’” Quest NetTech, 2019 WL 6344267, at *7 (citing In re
`
`Radmax, 720 F.3d at 290 (holding that, where five factors were neutral, two weighed in favor of
`
`transfer, and one weighed “solidly” in favor of transfer, the movant had met its burden)); see
`
`also In re Radmax, 720 F.3d at 290 (holding that courts abuse their discretion when they
`
`deny transfer solely because the plaintiff's choice of forum weighs in favor of denying
`
`transfer). A plaintiff’s choice of venue is
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 4 of 19
`
`not an independent factor in the venue transfer analysis, and courts must not give inordinate
`
`weight to a plaintiff’s choice of venue. Volkswagen II, 545 F.3d at 313 (“[W]hile a plaintiff has
`
`the privilege of filing his claims in any judicial division appropriate under the general venue
`
`statute, § 1404(a) tempers the effects of the exercise of this privilege.”). However, “when the
`
`transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the
`
`plaintiff’s choice should be respected.” Id. at 315; see also QR Spex, Inc. v. Motorola, Inc., 507
`
`F.Supp.2d 650, 664 (E.D. Tex. 2007) (characterizing movant’s burden under Section 1404(a) as
`
`“heavy”).
`
`III. BACKGROUND
`
`Plaintiff Triller, Inc. filed this patent infringement suit against Original Defendants
`
`ByteDance, Ltd. (“BDL”) and TikTok, Inc. (“TTI”) on July 29, 2020. Pl.’s Compl., ECF No. 1.
`
`Triller is incorporated in Delaware with its principal place of business located in Los Angeles,
`
`California. Id. at ¶ 3. BDL is a Cayman Islands corporation, and TTI is incorporated in California
`
`with its principal place of business located in Culver City, California. Defs.’ Mot., ECF No. 30 at
`
`¶¶ 1, 7.
`
`Defendant BDL filed a Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction
`
`contemporaneously with Defendants’ Rule 12(b)(3) Motion to Dismiss or Transfer pursuant to
`
`1404(a) on November 19, 2020. Def. BDL’s Mot. to Dismiss, ECF No. 29; Defs.’ Mot. On
`
`November 24, 2020, Triller amended its Complaint to include additional Defendants ByteDance,
`
`Inc. (“BDI”) and TikTok, Pte. Ltd. (“TTPL”). Pl.’s Amend. Compl., ECF No. 32 at ¶ 1. BDI is
`
`incorporated in Delaware with its principal place of business in Mountain View, California, and
`
`TTPL is a Singapore corporation. Defs.’ Reply, ECF No. 68 at ¶ 2; Pl.’s Amend. Compl. at ¶ 3.
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 5 of 19
`
`Triller claims that BDL “controls the majority of the shares or other ownership units of
`
`TTI, BDI, and TTPL and controls or attempts to control the activities of each of them,” and that
`
`BDI is the alter ego of TTI. Pl.’s Amend. Compl. at ¶¶ 3, 13. Furthermore, BDI’s Global
`
`Business Solutions unit is based in Austin, Texas, and the “TikTok app has been widely
`
`distributed in [WDTX.]” Pl.’s Resp., ECF No. 63 at ¶ 14; Pl.’s Amend. Compl. at ¶ 5.
`
`On February 1, 2021, BDI and TTPL joined the Original Defendants’ Section 1404(a)
`
`Motion to Transfer. Defs.’ Joinder, ECF No. 51. The Original Defendants then withdrew their
`
`Motions to Dismiss consenting to this Court’s jurisdiction “for purposes of this case only.”
`
`Defs.’ Joinder at ¶ 1 n.1. Triller filed its Response on May 12, 2021, and Defendants filed their
`
`Reply on June 1, 2021. Pl.’s Resp.; Defs.’ Reply. On June 25, 2021, the Court held a hearing on
`
`Triller’s Motion to Strike information presented in Defendants’ Reply, and the Motion to Strike
`
`was denied. Text Order denying Plaintiff’s Motion to Strike (July 6, 2021).
`
`Triller’s Complaint alleges infringement of U.S. Patent No. 9,691,429 titled “Systems
`
`and methods for creating music videos synchronized with an audio track” (the “Asserted
`
`Patent”). Pl.’s Amend. Compl. at ¶ 1. Triller is the developer and distributor of a social video
`
`platform application for iOS and Android devices. Id. Triller claims that Defendants “directly
`
`and indirectly infringe the Asserted Patent by making, using, offering for sale, selling, importing,
`
`and/or inducing others to use the popular iOS and Android software application known as
`
`‘TikTok.’” Id. at ¶ 2. The TikTok application is also a social video platform application for iOS
`
`and Android devices. Id. at ¶ 5. Triller claims the TikTok application infringes the Asserted
`
`Patent through the Green Screen Video (“GSV”) effect, which allows TikTok application users
`
`to “shoot over” synchronized video and audio tracks. Id. at ¶ 23.
`
`IV. ANALYSIS
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 6 of 19
`
`The threshold determination in the Section 1404(a) analysis is whether this suit “might
`
`have been brought” in NDCA or if all parties “consent[]” to NDCA. 28 U.S.C. § 1404(a).
`
`Defendants consent to NDCA jurisdiction, but Triller does not. Pl.’s Resp. at ¶¶ 2–3. Thus, the
`
`Court turns its attention to whether this suit might have been brought in NDCA against all
`
`Defendants.
`
`“Any civil action for patent infringement may be brought in any judicial district where
`
`the defendant resides, or where the defendant has committed acts of infringement and has a
`
`regular and established place of business.” 28 U.S.C. § 1400(b). A defendant has a “regular and
`
`established place of business” in any district where (1) a defendant has a physical place, (2) the
`
`physical place is a regular and established place of business, and (3) the physical place is the
`
`place of the defendant. In re Cray Inc., 871 F.3d 1355, 1360 (Fed. Cir. 2017). When a foreign
`
`corporation is sued for patent infringement, 28 U.S.C. § 1391 applies and not 28 U.S.C. §
`
`1400. In re HTC, 889 F.3d 1349, 1357 (Fed. Cir. 2018). “A civil action may be brought in—(1) a
`
`judicial district in which any defendant resides, if all defendants are residents of the State in
`
`which the district is located; (2) a judicial district in which a substantial part of the events or
`
`omissions giving rise to the claim occurred, or a substantial part of property that is the subject of
`
`the action is situated; or (3) if there is no district in which an action may otherwise be brought as
`
`provided in this section, any judicial district in which any defendant is subject to the court’s
`
`personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b)(1–3).
`
`The Court finds that this suit might have been brought in NDCA against domestic
`
`Defendants BDI and TTI. Venue is proper as to BDI under Section 1400(b) because it has a
`
`regular and established place of business in NDCA (Mountain View, California), and alleged
`
`acts of infringement (e.g., distribution of the TikTok application) have occurred in NDCA. Pl.’s
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 7 of 19
`
`Compl. at ¶¶ 15–16. Likewise, venue is proper as to TTI under Section 1400(b); although TTI is
`
`headquartered in the Central District of California (“CDCA”), TTI has “over
`
` employees
`
`located in a regular and established place of business in Mountain View, California.” Defs.’ Mot.
`
`at ¶ 7. Therefore, venue is proper as to both BDI and TTI under Section 1400(b) and this suit
`
`might have been brought against them in NDCA.
`
`Jurisdiction and venue are also appropriate in NDCA with regards to foreign Defendants
`
`BDL and TTPL. “
`
` Defs.’ Reply
`
`at ¶ 2; see also Fed. R. Civ. P. 4(k)(2) (jurisdiction over foreign defendants might have been
`
`established by Triller merely filing a summons in NDCA). The Court is also of the opinion that
`
`the venue requirement is met through either 28 U.S.C. § 1391(b)(2) or (3) via BDI and TTI’s
`
`presence in NDCA as developers of the allegedly infringing TikTok application. Defs.’ Joinder
`
`at ¶ 2. Furthermore, BDL and TTPL have affirmatively stated that they will consent to
`
`jurisdiction in NDCA. Defs.’ Reply at ¶ 2. Therefore, the Court finds that this suit “might have
`
`been brought” in NDCA against all Defendants.
`
`A. The Private Interest Factors Favor Transfer
`
`i. The Relative Ease of Access to Sources of Proof
`
`“In considering the relative ease of access to proof, a court looks to where documentary
`
`evidence, such as documents and physical evidence, is stored.” Fintiv, Inc. v. Apple, Inc., 2019
`
`WL 4743678, at *2. “[T]he question is relative ease of access, not absolute ease of access.” In re
`
`Radmax, 720 F.3d at 288 (emphases in original). “In patent infringement cases, the bulk of the
`
`relevant evidence usually comes from the accused infringer. Consequently, the place where the
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 8 of 19
`
`
`defendant’s documents are kept weighs in favor of transfer to that location.” In re Apple, Inc.,
`
`979 F.3d 1332, 1340 (Fed. Cir. 2020) (citing In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed.
`
`Cir. 2009)). Here, the Court finds that the location of physical and electronic documents slightly
`
`favors transfer to NDCA.
`
`It is undisputed that several sources of proof relevant to this litigation are located within
`
`and proximal to NDCA such as
`
` Defs.’ Mot. at ¶ 14. On the other hand, it is questionable if any
`
`sources of proof are located within or proximal to WDTX; Triller’s only reference to such
`
`possible documents is that “
`
`.” Pl.’s Resp. at ¶ 8. Triller also notes that most sources
`
`of proof relevant to this litigation are not in NDCA, but its resulting conclusion that this fact
`
`“clearly weigh[s] against transfer” does not necessarily follow. Id. at ¶ 7.
`
`Triller lists 20 sources of proof identified from Defendants’ depositions including
`
`software design and testing documents relevant to infringement, source code relevant to
`
`infringement and damages, development timelines relevant to infringement and willfulness, and
`
`data servers relevant to infringement and damages. Id. at ¶¶ 6–7. Of these sources of proof,
`
` and none are located within or proximal to WDTX.
`
`Id. Under current Fifth Circuit precedent, the physical location of electronic documents affects
`
`the outcome of this private interest factor. See Volkswagen II, 545 F.3d at 316.1 Because the
`
`documents are housed on servers, documents may be located on multiple servers in multiple
`
`1In several previous orders, this Court has noted that this precedent is out of touch with modern patent litigation.
`Fintiv, 2019 WL 4743678, at *8; Uniloc 2017 LLC v. Apple Inc., 6-19-CV-00532-ADA, 2020 WL 3415880, at *9
`(W.D. Tex. June 22, 2020). In those cases, this Court acknowledged that “all (or nearly all) produced documents
`exist as electronic documents on a party’s server. Then, with a click of a mouse or a few keystrokes, the party
`produces these documents.” Id.
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 9 of 19
`
`districts—as is the case here with documents being stored in
`
` Pl.’s Resp. at ¶¶ 6–7. As it appears that no sources of proof or
`
`servers are located within WDTX, yet a server with access to TikTok’s source code is located
`
`within
`
`, the Court finds this private interest factor slightly favors transfer to NDCA. Id. at
`
`¶ 6 n.7.
`
`ii. The Availability of Compulsory Process to Secure the Attendance of Witnesses
`
`“In this factor, the Court considers the availability of compulsory process to secure the
`
`attendance of witnesses, particularly non-party witnesses whose attendance may need to be
`
`secured by a court order.” Fintiv, 2019 WL 4743678, at *5 (citing Volkswagen II, 545 F.3d at
`
`316); Uniloc, 2020 WL 3415880, at *10. This factor “weigh[s] heavily in favor of transfer when
`
`more third-party witnesses reside within the transferee venue than reside in the transferor venue.”
`
`In re Apple, Inc., 581 F.App’x. 886, 889 (Fed. Cir. 2014). A court may subpoena a witness to
`
`attend trial only (a) “within 100 miles of where the person resides, is employed, or regularly
`
`transacts business in person,”; or (b) “within the state where the person resides, is employed, or
`
`regularly transacts business in person, if the person . . . is commanded to attend a trial and would
`
`not incur substantial expense.” Fed. R. Civ. P. 45(c)(1)(A), (B)(ii); Gemalto S.A. v. CPI Card
`
`Grp. Inc., No. 15-CA-0910, 2015 WL 10818740, at *4 (W.D. Tex. Dec. 16, 2015). As party
`
`witnesses almost invariably attend trial willingly, “[w]hen no party has alleged or shown any
`
`witness’s unwillingness, a court should not attach much weight to the compulsory process
`
`factor.” CloudofChange, LLC v. NCR Corp., No. 6-19-cv-00513 (W.D. Tex. Mar. 17, 2020).
`
`Moreover, the ability to compel live trial testimony is crucial for evaluating a witnesses’
`
`testimony. Aguilar-Ayala v. Ruiz, 973 F.2d 411, 419 (5th Cir. 1992).
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 10 of 19
`
`The Parties have specifically identified three non-party witnesses: TikTok application
`
`content creator
`
` (Los Angeles, CA), TikTok application content creator
`
` (San Joes, CA), and co-inventor of the Asserted Patent Mr. Samuel Rubin (Brooklyn,
`
`NY). Defs.’ Reply Ex. D, E; Pl.’s Amend. Compl. Ex. 1. Of these three, only
`
` falls
`
`within NDCA’s subpoena power, and she is willing to testify in NDCA but not WDTX. Defs.’
`
`Reply Ex. E at ¶ 6. Since
`
` states she is a willing NDCA witness, there is no indication
`
`that this suit will benefit from NDCA’s ability to subpoena her. Id.
`
`Defendants also claim that “[n]early all non-party and party witnesses likely to be called
`
`by TTI and Triller reside in California and are subject to subpoena in NDCA[.]” Defs.’ Reply at
`
`¶ 5. Defendants’ assertion is plausible, but as regards non-party witnesses—the primary focus of
`
`this private interest factor—the fact remains that only one NDCA witness has been specifically
`
`identified, and she is a willing NDCA witness. Since “no party has alleged or shown [this
`
`witness’s NDCA] unwillingness, a court should not attach much weight to the compulsory
`
`process factor.” CloudofChange, LLC v. NCR Corp., No. 6-19-cv-00513 (W.D. Tex. Mar. 17,
`
`2020).
`
`Likewise regarding unidentified potential non-party witnesses from Apple and Google,
`
`Defendants state that “Triller refers to Apple at least nine times in the Complaint . . . [t]hese
`
`hardware and software components are designed by Apple or Google in [NDCA] . . . Apple and
`
`Google likely have relevant technical information.” Defs.’ Mot. at ¶ 11. The Court is persuaded
`
`that non-parties Apple and Google would be equally subject to subpoena in NDCA as WDTX
`
`due to their substantial presence in both districts, and that relevant witnesses will be identifiable
`
`from both companies in either district. See Pl.’s Resp. at ¶ 10.
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 11 of 19
`
`The Court agrees with Defendants that non-party witness testimony may possibly be
`
`better secured in NDCA than WDTX, but this possibility can only contribute negligibly to the
`
`resolution of this private interest factor. See Mini Melts, Inc. v. Uniworld Corp. WLL, 2008 WL
`
`4441979, *4 (E.D. Tex. 2008). Furthermore, Triller does not specifically identify any witnesses
`
`that fall within WDTX’s subpoena power. Pl.’s Resp. at ¶¶ 8–10. The Court finds this private
`
`interest factor to slightly favor transfer to NDCA due to the presence of one non-party witness
`
`falling within NDCA’s subpoena power.
`
`iii. The Cost of Attendance for Willing Witnesses
`
`The convenience of witnesses is the single most important factor in the transfer analysis.
`
`SynKloud Techs., LLC v. Dropbox, Inc., No. 6:19-CV-00525-ADA, 2020 WL 2494574, at *4
`
`(W.D. Tex. May 14, 2020); In re Genentech, 566 F.3d at 1342. As the Fifth Circuit has held, it is
`
`obviously more convenient for witnesses to testify closer to home, and additional distance means
`
`additional travel, meal, and lodging costs, as well as additional time away from the witnesses’
`
`regular employment. Volkswagen, 545 F.3d at 317. “When the distance between an existing
`
`venue for trial of a matter and a proposed venue under § 1404(a) is more than 100 miles, the
`
`factor of inconvenience to witnesses increases in direct relationship to the additional distance to
`
`be traveled.” Id. Significantly, this factor relates primarily to the inconvenience placed on willing
`
`non-party witnesses, not party witnesses. See Seven Networks, 2018 WL 4026760, at *9
`
`(collecting cases); Frederick v. Advanced Fin. Sols., Inc., 558 F.Supp.2d 699, 704 (E.D. Tex.
`
`2007) (“The availability and convenience of party-witnesses is generally insignificant because a
`
`transfer based on this factor would only shift the inconvenience from movant to nonmovant.”).
`
`Under this factor, courts should consider all potential material and relevant witnesses.”
`
`Alacritech Inc. v. CenturyLink, Inc., No. 2:16-CV-00693, 2017 WL 4155236, at *5 (E.D. Tex.
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 12 of 19
`
`Sept. 19, 2017). When witnesses will be required to travel significant distances regardless of
`
`whether the case is transferred, “the ‘100-mile rule’ should not be rigidly applied.” In re
`
`Genentech, 566 F.3d at 1344; see In re TracFone Wireless, Inc., No. 2021-136, 2021 WL
`
`1546036 (Fed. Cir. Apr. 20, 2021).
`
`Defendants have specifically identified only two non-party “content creator” witnesses
`
`who “are likely to provide testimony relevant to at least damages, such as how they use the
`
`TikTok app and whether they use the accused feature.” Defs.’ Reply at ¶ 3. Both content creators
`
`reside in California (Los Angeles and San Jose) and are willing to testify in NDCA but not
`
`WDTX due to geographical convenience. Id., Ex. D at ¶ 8; id., Ex. E at ¶ 6. Defendants also
`
`imply that they would be unable to find satisfactory replacement witnesses close to WDTX:
`
`” Id. at ¶ 3. The
`
`Court is unconvinced that these two “content creators” have unique and relevant testimony or
`
`that a
`
` content creator limitation is necessary to secure relevant testimony on how the
`
`TikTok application is used and to what degree the GSV feature is utilized. The Court specifically
`
`notes that there are approximately 50 million daily TikTok application users in the United
`
`States,2 and so the Court is unpersuaded by Defendants’ implication that not one of these 50
`
`million users would be able to provide the same or similar testimony on how they use the TikTok
`
`app and whether they use the accused feature as
`
` content creators. Furthermore, the
`
`Court is also unconvinced that other sources of information would not be a more reliable or
`
`readily available alternatives to the same testimony that could be obtained from a
`
`content creator. For example, other reliable methods querying GSV utilization such as data
`
`analytics or surveys are widely utilized and accepted forms of data collection.
`
`2Alex Sherman, TikTok reveals detailed user numbers for the first time, CNBC,
`https://www.cnbc.com/2020/08/24/tiktok-reveals-us-global-user-growth-numbers-for-first-time.html (last accessed
`July 8, 2021).
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 13 of 19
`
`Triller’s non-party witness from New York is a co-inventor of the Asserted Patent; since
`
`the co-inventor of the Asserted Patent is already a Triller party witness, the non-party inventor
`
`would likely provide duplicative testimony. Id. at ¶ 4 n.9.
`
`The Court finds that the cost of attendance for willing non-party witnesses is neutral
`
`between NDCA and WDTX because the New York inventor’s testimony will likely be
`
`duplicative of Triller’s party witness inventor, and the California content creators are not unique
`
`witnesses.
`
`For party witnesses, Triller merely provides a table of 19 individuals with their names
`
`and job descriptions with no further explanation as to what potentially relevant testimony each
`
`individual might testify to. Pl.’s Resp. at ¶ 11–12. In its brief and indecipherable chart, Triller
`
`also fails to identify which party each individual witness is affiliated with and expects the Court
`
`to attribute each witness to a particular party from the “responsibilities” described therein when
`
`the “responsibilities” merely constitute vague phrases such as “mid-market account manager”
`
`with no further descriptor or party affiliation. Id. Triller does not provide the actual job titles for
`
`these individuals and merely states that “[m]ost of the party or party-affiliated witnesses with
`
`material information about this action are located in places other than NDCA, as revealed by the
`
`following table: . . . .” Id. Because the Court cannot decipher which party many of these
`
`individuals are associated with, the Court cannot determine their relevance in the convenience
`
`analysis. The Court finds that Triller’s chart submission, without further explanation as to the
`
`relevance or even substance of a witness’s testimony, is insufficient and given minimal weight in
`
`the convenience analysis.
`
`Nevertheless, according to Triller’s chart,
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 14 of 19
`
`. Id. The witnesses from New York include the co-inventor of the Asserted Patent (a
`
`Triller employee), and
`
`Id. The witnesses from
`
`. Id. Since Triller does not specify how it would use the
`
`witnesses associated with
`
` or how their
`
`testimonies would differ, the Court infers that these witnesses would give largely duplicative
`
`testimony relevant to damages.
`
`The witnesses from
`
`. Id. The witness from
`
`, and the witness from
`
` Id. Lastly, the witnesses from
`
` responsible
`
`for distribution of the TikTok application to iOS and Android devices (duplicative), and another
`
`financial witness. Defs.’ Reply at ¶ 5. Furthermore, Defendants claim that
`
`NDCA, although none are named. Id. Again, Triller provides no additional information as to
`
`what testimony such witnesses would provide or whether they would testify to any unique or
`
`relevant information. In short, the Court infers from the Parties’ briefs that various potential
`
`” are located in
`
`party witnesses relevant to this suit may reside in
`
`.
`
`“In Seven Networks, the court found that the inconvenience to Google's party witnesses
`
`if the case was not transferred would generally be the same as the inconvenience to the plaintiff's
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 15 of 19
`
`party witnesses if the case was transferred, and thus concluded that the two concerns canceled
`
`each other out.” Texas v. Google, LLC, 2021 WL 2043184, at *5 (E.D. Tex. May 20, 2021)
`
`(citing Seven Networks, LLC v. Google, LLC, 2018 WL 4026760, at *12). Likewise here, the
`
`presence of witnesses in NDCA and WDTX “cancel[] each other out.” Id. Since Triller does not
`
`adequately establish its reasoning for the inclusion of other potential party witnesses in its two-
`
`page chart, the Court finds this factor to be neutral.
`
`iv. All Other Practical Problems That Make Trial of a Case Easy, Expeditious, and
`
`Inexpensive
`
`When examining practical problems, this Court considers problems such as those
`
`rationally based on judicial economy which will weigh heavily in favor of or against transfer. In
`
`re Volkswagen of Am., Inc., 566 F.3d 1349, 1351 (Fed. Cir. 2009) (Volkswagen III). Of primary
`
`concern here is Defendants’ co-pending NDCA infringement suit against Triller on three patents,
`
`and the purported overlap of witnesses with this suit. Defs.’ Mot. Ex. 2; Defs.’ Mot. at ¶¶ 16–17.
`
`The three patents pending litigation in NDCA are titled “Method of enabling digital music
`
`content to be downloaded to and used on a portable wireless computing device.” Defs.’ Mot. Ex.
`
`2 at ¶ 4. Defendants’ NDCA infringement claims do not relate to the GSV feature central to
`
`litigation pending here in WDTX, and so the Court can not speculate as to the degree of overlap
`
`of witnesses. See id. Furthermore, Defendants created this possibility of inefficiency themselves
`
`by filing their NDCA action second rather than bringing their infringement claims as
`
`counterclaims here. As such, Defendants should not be significantly rewarded in this balancing
`
`test for creating the very problem this factor weighs. NDCA has also stayed that action pending
`
`resolution of this Motion to Transfer. Pl.’s Resp. at ¶ 13. The possibility of judicial inefficiency
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 16 of 19
`
`Defendants created is weighed against the modest progress already made in this case, and the
`
`Court find this private interest factor to be neutral.
`
`B. The Public Interest Factors Slightly Favor Transfer
`
`i. The Administrative Difficulties Flowing from Court Congestion
`
`The relevant inquiry under this factor is actually “[t]he speed with which a case can come
`
`to trial and be resolved[.]” In re Genentech, 566 F.3d at 1347. A faster average time to trial
`
`means a more efficient and economical resolution of the claims at issue.
`
`Defendants assert that this factor is neutral because the “Federal Circuit has held that
`
`there is no ‘appreciable difference in docket congestion between the forums [WDTX and
`
`NDCA] that could legitimately be worthy of consideration under this factor.’” Defs.’ Mot. at ¶
`
`18 (citing In re Adobe Inc., No. 2020-126, 2020 WL 4308164 at *3 (Fed. Cir. July 28, 2020)).
`
`Without further elaboration, Defendants also cite to an instance where this Court determined this
`
`factor to be neutral between WDTX and NDCA. Defs.’ Reply at ¶ 8. In that instance, this Court
`
`determined this factor was neutral because “neither discovery nor a Markman hearing have
`
`occurred.” 10Tales, Inc. v. TikTok, Inc., 2021 WL 2043978 at *5 (W.D. Tex. May 21, 2021). In
`
`this case, discovery has occurred, and the Markman is imminent. Markman Order, ECF No. 76.
`
`Triller argues that this factor weighs against transfer because this Court specifically (not
`
`WDTX) has demonstrated its ability to conduct safe and efficient in-person jury trials during the
`
`COVID-19 pandemic, this Court specifically (not WDTX) has a quicker rate of patent litigation
`
`disposal than NDCA, and NDCA has not held a patent trial in over a year. Pl.’s Resp. at ¶ 14.
`
`Recently, this Court analyzed a similar Motion to Transfer to NDCA and found that “[w]hile
`
`[movant] claims historically WDTX and NDCA have disposed of cases at comparable rates,
`
`recently this Court has proved more expeditious. In this Court’s judgment, recent data is more
`
`

`

`Case 6:20-cv-00693-ADA Document 86 Filed 07/09/21 Page 17 of 19
`
`probative in determining court congestion. . . . Thus this Court finds that this factor weights
`
`against transfer” Koss Corp. v. Apple, 6-20-CV-00665-ADA, ECF No. 76 at 25–26 (W.D. Tex.
`
`April 22, 2021). Since Defendants do not rebut Triller’s arguments that this Court can resolve
`
`this litigation with greater speed than NDCA, the Court finds that this factor weighs against
`
`transfer.
`
`ii. The Local Interest in Having Localized Interests Decided at Home
`
`Under this factor, the Court must evaluate whether there is a local interest in deciding
`
`local issues at home. Volkswagen II, 545 F.3d at 317. “A local interest is demonstrated by a
`
`relevant factual connection between the events and the venue.” Word to Info, Inc. v. Facebook,
`
`Inc., N