Case 6:21-cv-00528-ADA Document 55 Filed 03/01/22 Page 1 of 20
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`BILLJCO, LLC,
` Plaintiff,
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`v.
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`APPLE INC.,
` Defendant.
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`6:21-cv-00528-ADA
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`[AMENDED] MEMORANDUM OPINION & ORDER DENYING
`DEFENDANT APPLE INC.’S MOTION TO TRANSFER
`VENUE PURSUANT TO 28 U.S.C. § 1404(a) [ECF No. 26]
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`Came on for consideration this date is Defendant Apple Inc.’s Motion to Transfer Venue
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`Pursuant to 28 U.S.C. § 1404(a). ECF No. 26 (the “Motion”). Plaintiff BillJCo, LLC filed an
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`opposition on December 27, 2021, ECF No. 33, to which Google replied on January 10, 2022,
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`ECF No. 37. BillJCo also filed a Notice of Supplemental Authority on February 16, 2022. ECF
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`No. 48. After careful consideration of the Motion, the Parties’ briefs, and the applicable law, the
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`Court DENIES Apple’s Motion.1
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`I. BACKGROUND
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`BillJCo filed suit on May 25, 2021, accusing a variety of Apple iPhones and iPads (the
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`“Accused Products”) of infringing U.S. Patent Nos. 8,566,839 (the ’839 Patent); 8,639,267 (the
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`’267 Patent); 8,761,804 (the ’804 Patent); 9,088,868 (the ’868 Patent); 10,292,011 (the ’011
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`Patent); and 10,477,994 (the ’994 Patent) (collectively the “Asserted Patents”) based on BillJCo’s
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`assertion that the Accused Products “conform to and implement the iBeacon protocol and infringe
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`the Patents-in-Suit.” ECF No. 1 (the “Complaint”) ¶¶ 36–37. According to BillJCo, the asserted
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`1 This Amended Order VACATES and SUPERSEDES the Order at ECF No. 49. This Amended
`Order merely corrects an error in the final sentence of ECF No. 49.
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`1
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`Case 6:21-cv-00528-ADA Document 55 Filed 03/01/22 Page 2 of 20
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`patents “relate to specific and particularized inventions for, and associated with, this beacon
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`technology and the related protocols and specifications which facilitate and enable aspects of the
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`beacon technology ecosystem including devices capable of implementing beacon standards and
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`specifications, manufacturers of beacon transmitting devices, application developers, and beacon
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`deployers.” Id. ¶ 21. BillJCo’s Complaint accuses iOS products, such as iPhones and iPads, that
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`allegedly “conform to and implement the iBeacon protocol.” Id. ¶ 36.
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`Apple is a California corporation, employing more than 35,000 people who work in or
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`around its headquarters in Cupertino. See ECF No. 26-1 (the “Rollins Affidavit”) ¶ 3.
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`BillJCo is Texas limited liability corporation headquartered in Flower Mound, Texas, and
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`founded by Bill Johnson. ECF No. 1 ¶ 4.
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`Case 6:21-cv-00528-ADA Document 55 Filed 03/01/22 Page 3 of 20
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`Apple has moved to transfer this case to the Northern District of California (“NDCA”)
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`under 28 U.S.C. § 1404(a), alleging that it is more convenient than this District. That Motion is
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`now ripe for judgment.
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`II. LEGAL STANDARD
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`In patent cases, motions to transfer under § 1404(a) are governed by the law of the regional
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`circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). Title 28 U.S.C. § 1404(a)
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`provides that, “[f]or the convenience of parties and witnesses, in the interest of justice, a district
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`court may transfer any civil action to any other district or division where it might have been
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`brought or to any district or division to which all parties have consented.” “Section 1404(a) is
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`intended to place discretion in the district court to adjudicate motions for transfer according to an
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`‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v.
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`Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
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`“The preliminary question under § 1404(a) is whether a civil action ‘might have been
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`brought’ in the [transfer] destination venue.” In re Volkswagen, Inc., 545 F.3d 304, 312 (5th Cir.
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`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. The weight the Court gives to each of these assorted convenience
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`factors will necessarily vary from case to case. See Burbank Int’l, Ltd. v. Gulf Consol. Int’l, Inc.,
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`441 F. Supp. 819, 821 (N.D. Tex. 1977). A court should not deny transfer where “only the
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`plaintiff’s choice weighs in favor of denying transfer and where the case has no connection to the
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`transferor forum and virtually all of the events and witnesses regarding the case . . . are in the
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`transferee forum.” In re Radmax, Ltd., 720 F.3d 285, 290 (5th Cir. 2013).
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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). Yet,
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`the Federal Circuit has clarified that, for a court to hold that a factor favors transfer, the movant
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`need not show that that factor clearly favors transfer. In re Apple Inc., 979 F.3d 1332, 1340 (Fed.
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`Cir. 2020).
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`A.
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`Venue and Jurisdiction in the Transferee Forum
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`III. ANALYSIS
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`This Court finds, and BillJCo does not contest, that this Action could have been brought in
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`the NDCA.
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`B.
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`Private Interest Factors
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`1.
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`Relative Ease of Access to Source 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-ADA, 2019 U.S. Dist. LEXIS 171102, at *5 (W.D. Tex. Sept. 10, 2019). This factor
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`relates to the relative—not absolute—ease of access to non-witness evidence. See In re Radmax,
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`720 F.3d at 288; In re Apple, 979 F.3d at 1339. And “the movant need not show that all relevant
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`documents are located in the transferee venue to support a conclusion that the location of relevant
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`documents favors transfer.” In re Apple, 979 F.3d at 1340.
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`The Fifth Circuit has held that, even in the context of electronic documents that can be
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`accessed anywhere on earth, this factor is not superfluous. See Volkswagen II, 545 F.3d at 316; see
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`also In re Dish Network L.L.C., No. 2021-182, 2021 U.S. App. LEXIS 31759, at *6 (Fed. Cir. Oct.
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`21, 2021). Though having persistently characterized that holding as antiquated in the setting of a
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`modern patent dispute, this Court will continue to analyze this factor with a focus on the location
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`of physical documents and other evidence; and the hardware storing the relevant electronic
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`documents. See, e.g., Bluebonnet Internet Media Servs., LLC v. Pandora Media, LLC, No. 6-20-
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`CV-00731-ADA, 2021 U.S. Dist. LEXIS 137400, at *7 & n.1 (W.D. Tex. July 22, 2021), vacated
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`on other grounds, In re Pandora Media, LLC, No. 2021-172, 2021 U.S. App. LEXIS 30963 (Fed.
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`Cir. Oct. 13, 2021).
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`BillJCo asserts all its evidence is “100 miles away from this Court,” at BillJCo’s
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`headquarters in Flower Mound. ECF No. 33 at 3, 6. Apple argues that “BillJCo’s physical
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`documents in the EDTX do not warrant keeping this case in the WDTX.” ECF No. 37 at 1. Given
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`Flower Mound’s proximity to this Court, it is easier to access BillJCo’s evidence from Waco than
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`it would be from the NDCA. This weighs against transfer.
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`Yet Apple has also shown that its documents are relatively easier to access in the NDCA.
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`Apple states that its “witnesses with knowledge potentially relevant to this case—software
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`engineers, product managers, marketing, licensing, and finance personnel—have all confirmed
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`that Apple’s relevant documents are in California.” ECF No. 26 at 6 (citing ECF No. 26-1 ¶¶ 7–
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`14). More specifically, “the overwhelming majority of the research, design, and development of
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`the accused features took place, and continues to take place, at Apple’s Cupertino headquarters,
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`with only a handful of team members located in other states.” Id. at 7. And Apple’s licensing
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`documents and “documents concerning the marketing, sales and financial information for the
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`accused products are all located in or around Cupertino.” Id.
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`In support of these contentions, Apple cites to the Rollins Affidavit, in which Mark Rollins,
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`a Finance Manager with Apple, attests that “working files and electronic documents concerning
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`the accused features reside on local computers and/or servers either located in or around NDCA
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`or which are accessible in NDCA.” ECF No. 26-1 ¶ 7. The imprecision of this representation
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`encompasses a scenario in which Apple’s documents are not located in the NDCA at all, but are
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`merely accessible there. Moreover, none of the Apple personnel BillJCo deposed testified that
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`these documents are not also accessible from Texas. See, e.g., ECF No. 37-1 at 26:16–19. They
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`did, however, testify that it is more difficult to access documents in Texas compared to California,
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`primarily due to slow internet or latency issues. Id. at 26:6–15; ECF No. 37-2 at 6–19; ECF No.
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`37-3 at 25:2–26:16. One Apple employee further testified that he worked with hard copy
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`documents in California. Id. at 26:20–24. Yet another testified that Apple does not “tend to use
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`hard copy documents very often.” ECF No. 37-3 at 25. And Apple’s interrogatory responses failed
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`to identify any relevant, physical evidence in Cupertino. See ECF No. 33-3 at 8.
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`In view of these representations, the Court is not convinced that there is much physical
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`evidence, if any, located in the NDCA. This witness testimony shows, however, that it is easier to
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`access Apple’s electronic documents from the NDCA than from this District. This weighs in favor
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`of transfer. See Volkswagen II, 545 F.3d at 316 (focusing on relative ease of access to sources of
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`proof); In re Dish, 2021 U.S. App. LEXIS 31759, at *6 (same). Yet Apple’s witnesses’ testimony
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`only establishes that the difference in accessibility between the WDTX and the NDCA is a degree
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`of lag. Apple has not shown that this is more than a minor inconvenience (or that lag affects
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`documents accessed from Apple’s Austin campus), so the weight accorded to Apple’s electronic
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`documents is diminished. On the other hand, the Court recognizes that, because most relevant
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`evidence emanates from the defendant, the weight accorded to Apple’s electronic documents
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`exceeds that owed to BillJCo’s evidence in Flower Mound (the extent of which BillJCo has not
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`opined upon).
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`Apple further alleges that the relevant source code is maintained in the NDCA, “controlled
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`on a need-to-know basis,” and is available for inspection in the NDCA. ECF No. 26 at 7; ECF No.
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`37 at 1. This, Apple contends, favors transfer. ECF No. 26 at 7. The Court accords this little weight.
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`Apple personnel testified that
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`To the extent Apple demands that source code inspection occur
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`exclusively in the NDCA, it is unclear why the convenience analysis should consider that. Such
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`confidentiality restrictions affect only BillJCo’s technical expert and counsel; their convenience is
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`accorded little to no weight in the § 1404(a) analysis. Even if it was owed substantial weight, Apple
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`has not explained how transfer affects the inconvenience visited upon BillJCo’s experts and
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`counsel when source-code inspection is limited to the NDCA.
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`Finally, Apple asserts that the standards development organization (“SDO”) overseeing the
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`development of Bluetooth standards is in Kirkland, Washington. ECF No. 26 at 7. Apple expects
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`the SDO to have relevant documents because BillJCo alleges that the patents cover technology
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`within the Bluetooth Low Energy (“BLE”) standard. Id. This favors of transfer.
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`Most of the relevant evidence will come from the accused infringer. See In re Nintendo
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`Co., 589 F.3d 1194, 1199 (Fed. Cir. 2009); In re Genentech, 566 F.3d 1338, 1345 (Fed. Cir. 2009).
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`And because Apple’s electronic evidence is more easily accessible from the NDCA than from this
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`District, this factor favors transfer. A Washington-based SDO’s possession of documents relevant
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`to the claimed technology bolsters this finding. Yet this factor does not heavily favor transfer
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`because BillJCo houses relevant evidence at its Flower Mound headquarters not far from Waco.
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`2.
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`Availability of Compulsory Process
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`Under the Federal Rules, a court may subpoena a witness to attend trial only (a) “within
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`100 miles of where the person resides, is employed, or regularly transacts business in person”; or
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`(b) “within the state where the person resides, is employed, or regularly transacts business in
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`person, if the person . . . is commanded to attend a trial and would not incur substantial expense.”
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`Fed. R. Civ. P. 45(c)(1)(A), (B)(ii); Gemalto S.A. v. CPI Card Grp. Inc., No. 15-CA-0910, 2015
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`WL 10818740, at *4 (W.D. Tex. Dec. 16, 2015). Under this factor, the Court focuses on non-party
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`witnesses whose attendance may need to be secured by a court order. Fintiv, 2019 U.S. Dist.
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`LEXIS 171102, at *14 (citing Volkswagen II, 545 F.3d at 316). This factor “weigh[s] heavily in
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`favor of transfer when more third-party witnesses reside within the transferee venue than reside in
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`the transferor venue.” In re Apple, Inc., 581 F. App’x 886, 889 (Fed. Cir. 2014). When “there are
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`several witnesses located in the transferee forum and none in the transferor forum,” this factor
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`favors transfer. In re Google, No. 2021-171, 2021 WL 4592280, at *5 (Fed. Cir. Oct. 6, 2021).
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`The Federal Circuit has held that, under Fifth Circuit law, “when there is no indication that
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`a non-party witness is willing, the witness is presumed to be unwilling and considered under the
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`compulsory process factor.” In re HP Inc., No. 2018-149, 2018 WL 4692486, at *3 n.1 (Fed. Cir.
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`Sept. 25, 2018); see also In re Hulu, LLC, No. 2021-142, 2021 U.S. App. LEXIS 22723, at *10
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`(Fed. Cir. Aug. 2, 2021) (“[W]here . . . the movant has identified multiple third-party witnesses
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`and shown that they are overwhelmingly located within the subpoena power of only the transferee
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`venue, this factor favors transfer even without a showing of unwillingness for each witness.”).
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`Further, this Court cannot “discount” third-party entities having pertinent information in the
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`transferee venue “just because individual employees were not identified.” In re Apple Inc., No.
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`2021-181, 2021 U.S. App. LEXIS 33788, at *8 (Fed. Cir. Nov. 15, 2021) (quoting In re HP Inc.,
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`826 F. App’x 899, 903 (Fed. Cir. 2020)).
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`BillJCo identifies several non-party witnesses within this Court’s subpoena power. BillJCo
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`names Michael Johnson, Lev Sofman, Craig Newman, and Kevin Watson as Texas-based
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`witnesses with relevant knowledge. ECF No. 33 at 12; ECF No. 33-1 ¶¶ 10–13. The Johnson
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`Affidavit states that Mr. Sofman helped Bill Johnson develop software covered by the Asserted
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`Patents. ECF No. 33-1 ¶ 9. Mr. Newman and Mr. Watson allegedly “provided business and
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`technical advice to BillJCo in launching” the LBX Portfolio. Id. ¶ 11. Michael Johnson was, in
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`Bill Johnson’s estimation, “instrumental in launching BillJCo and developing the LBX Portfolio.”
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`Id. ¶ 12. Yet BillJCo does not explain what knowledge these potential witnesses have that is
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`relevant to any claim or defense at issue. See ECF No. 37 at 2. The Court will not guess at that
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`relevant knowledge; their convenience is disregarded.
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`BillJCo further alleges that SXSW LLC and Texas Instruments employ relevant third-party
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`witnesses. ECF No. 33 at 9. According to BillJCo, Apple “assisted” Austin-based SXSW “with
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`the largest rollout of iBeacon technology in the world, and SXSW continues to serve as a showcase
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`event for Apple’s iBeacon technology.” Id. at 1. BillJCo also represents that Dallas-based Texas
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`Instruments was an “early adopter of the iBeacon technology.” Id. Yet BillJCo does not offer any
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`suggestion as to what knowledge a SXSW or Texas Instrument employee may have relevant to a
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`claim or defense in this litigation. See ECF No. 37 at 1–2. Again, this Court will not guess at the
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`relevant knowledge these witnesses possess and therefore disregards their convenience. (The Court
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`is also confident in Apple’s ability to identify customers in California with similar knowledge to
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`that which SXSW of Texas Instruments may offer.)
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`BillJCo argues that Austin-based Craig Yudell, BillJCo’s former attorney who attempted
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`to negotiate the sale of the portfolio to Apple, has relevant knowledge and will be inconvenienced
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`by transfer. ECF No. 37 at 2. BillJCo alleges that Mr. Yudell may have relevant information
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`because BillJCo’s negotiations with Apple form the basis of BillJCo’s willful infringement claim.
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`Id. Apple responds that one of its former employees, Edward Scott, was party to the same
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`negotiations and resides in the NDCA. Id. The Court is content that Mr. Yudell and Mr. Scott
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`neutralize one another, if their testimony is even relevant.
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`Finally, BillJCo notes that Jason Johnson, one of the inventors of the asserted patents, lives
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`in Waco. ECF No. 33 at 12. As a named inventor, the Court presumes that Jason Johnson possesses
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`relevant information, especially about inventorship. And there is no indication that BillJCo can
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`compel him to testify. This Court can. Mr. Johnson breaks the tie here—this factor favors
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`maintaining this Action in this District.
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`Apple argues that BillJCo fails to identify “any unique evidence that [Jason Johnson] has
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`that would not otherwise be provided by . . . Bill Johnson.” ECF No. 37 at 3. The Court will not
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`hold that one joint inventor cannot have any relevant knowledge not possessed by another joint
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`inventor, especially when it comes to inventorship. In any event, the Court will not hold BillJCo
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`to a standard Apple is not held to—Apple has not clearly indicated what unique evidence each of
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`its technical personnel, referenced infra, possess, yet the Court has not discounted their
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`convenience.
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`3.
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`Cost of Attendance of 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 U.S. Dist. LEXIS 171102, at *17. The Fifth Circuit has established the “100-mile
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`rule,” providing that “[w]hen the distance between an existing venue for trial of a matter and a
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`proposed venue under § 1404(a) is more than 100 miles, the factor of inconvenience to witnesses
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`increases in direct relationship to the additional distance to be traveled.” Volkswagen I, 371 F.3d
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`at 204–05.
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`The Federal Circuit has held that, where witnesses would be required to travel a significant
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`distance no matter where they testify, those witnesses will only be slightly more inconvenienced
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`by having to travel to, for example, California, compared to Texas. In re Apple, 979 F.3d at 1342
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`(discussing witnesses traveling from New York) (citing Volkswagen II, 545 F.3d at 317); In re
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`Genentech, 566 F.3d at 1344 (stating that the 100-mile rule should not be “rigidly” applied in the
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`context of foreign witnesses). It has opined elsewhere that “[t]he comparison between the
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`transferor and transferee forum is not altered by the presence of other witnesses and documents in
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`places outside both forums.” In re Toyota Motor Corp., 747 F.3d at 1340; In re Google LLC, No.
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`2021-170, 2021 U.S. App. LEXIS 29137, at *12 (Fed. Cir. Sept. 27, 2021) (“[W]hen there are
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`numerous witnesses in the transferee venue and the only other witnesses are far outside the
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`plaintiff’s chosen forum, the witness-convenience factor favors transfer.”). And, in yet other cases,
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`it has considered only hypothetical travel-time statistics, and not distance, under this factor. See,
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`e.g., In re Google LLC, 2021 U.S. App. LEXIS 29137, at *12.
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`The Federal Circuit has recognized that “an employer’s cooperation in allowing an
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`employee to testify may diminish certain aspects of inconvenience to the employee witness (for
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`instance, the employee is not acting contrary to their employer’s wishes).” In re Hulu, No. 2021
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`U.S. App. LEXIS 22723, at *13. Elsewhere it has stated that inconvenience is not attenuated at all
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`when the witnesses are employees of the party calling them. See, e.g., In re Juniper Networks, Inc.,
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`14 F.4th 1313, 1319 (Fed. Cir. 2021).
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`BillJCo’s sole employee, Mr. Bill Johnson, is in Texas. See ECF No. 33 at 11; ECF No. 37
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`at 3. Even though Mr. Johnson may not reside within this District, Waco sits 100 miles apart from
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`BillJCo’s headquarters in Flower Mound. Transfer would greatly inconvenience Mr. Johnson.
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`Apple essentially asks the Court to disregard Mr. Johnson’s convenience because he resides in the
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`EDTX instead of this District. ECF No. 26 at 10. The Court will not ignore Mr. Johnson’s
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`convenience merely because he lives 100 miles North of Waco, in the EDTX, instead of 100 miles
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`South of Waco, in this District. To hold otherwise would place form over substance.
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`Apple has shown that its relevant personnel, all within California, would be
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`inconvenienced if this Action remains in this District. Apple argues that because it developed the
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`accused products “primarily” in Cupertino, likely witnesses are located in the NDCA. ECF No. 26
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`at 9. Witnesses knowledgeable about licensing information and “marketing, sales and financial
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`information for the accused products” are also located in Cupertino. Id. Apple specifically
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`identifies:
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`• Rob Mayor, a Software Development Engineering Director who, along with his team
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`was responsible for the research, design, and development of iBeacon technology. ECF
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`No. 26-1 ¶¶ 7–14.
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`• Jason Giles, a Software Development Engineering Director who, along with his team,
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`have been involved in supporting BLE in certain of the Accused Products. Id.
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`• Wiley Hodges, a Product Management Director who, along with his team, are
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`responsible for marketing Apple’s Accused Products. Id.
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`• Jeffrey Lasker, a Principal Counsel in the IP Transactions group at Apple, who, along
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`with his team, are responsible for intellectual property licensing at Apple. Id.
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`• Mr. Rollins himself, who is “knowledgeable about Apple’s sales and financial
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`information concerning the” Accused Products. Id.
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`Apple further notes that NDCA-based Elaine Wong, an Apple employee, was involved in
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`the pre-suit communications between BillJCo and Apple. ECF No. 37 at 2.
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`BillJCo challenges the number of personnel Apple named as witnesses, arguing that Apple
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`“has only presented an average of 2.33 fact witnesses in patent trials over the past two years,
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`reaffirming that in patent cases, the vast majority of testimony comes from retained expert
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`witnesses.” ECF No. 33 at 10. BillJCo further chastises Apple for naming two witnesses on the
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`same topic—research, design, and development of the accused features. Id. The Federal Circuit
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`has cautioned this Court from “substitut[ing] its own assumption that . . . witnesses are unlikely to
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`testify in place of specific reasons to believe that the . . . witnesses would be relevant.” In re
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`Atlassian Corp. PLC, No. 2021-177, 2021 U.S. App. LEXIS 33790, at *6 (Fed. Cir. Nov. 15,
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`2021). That guidance dissuades the Court from assuming on these facts that Apple will not call
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`each of the identified witnesses on the stand in this case.
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`In addition, BillJCo proposes that the Court should disregard Mr. Rollins, labeling him a
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`“universal witness” whom Apple has identified as a likely witness in several cases involving
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`different technologies. ECF No. 33 at 11. BillJCo also notes that Mr. Rollins has not yet appeared
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`Case 6:21-cv-00528-ADA Document 55 Filed 03/01/22 Page 14 of 20
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`as a live witness at any trial. Id. This Court is, of course, vigilant against gamesmanship, but
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`BillJCo presents no evidence that when Mr. Rollins comes about his knowledge of “sales and
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`financial information concerning the accused products,” it is for the purpose of distorting the
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`§ 1404(a) analysis ECF No. 26-1 ¶ 14. The Court will not, therefore, disregard Mr. Rollins under
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`this factor.
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`But, as this Court has opined upon before, Apple’s increasing footprint in this District
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`reduces any inconvenience upon Apple personnel traveling from Cupertino. Apple plans to add to
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`its existing space in Austin by constructing a 3-million-square-foot Austin campus, including a
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`192-room hotel meant to house Apple employees traveling for work. See Koss Corp. v. Apple Inc.,
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`No. 6-20-CV-00665-ADA, 2021 WL 5316453, at *9 (W.D. Tex. Apr. 22, 2021). That new facility
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`is scheduled to open in 2022, well before trial is scheduled in this Action. This Court:
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`strongly believes that the convenience of this new Austin facility,
`along with its existing Austin facilities, greatly minimizes the time
`that Apple’s employees are removed from their regular work
`responsibilities. Additionally, travel time from this work site to the
`Court facility would be comparable, if not less, than the travel time
`from Apple employees California work sites to a NDCA courthouse.
`
`Id.
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`While BillJCo has one willing witness just beyond the District line, Apple has several in
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`the NDCA. This factor, therefore, favors transfer. But not heavily, at least because Apple’s
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`burgeoning Austin campus attenuates the inconvenience that a Waco trial visits upon Apple’s
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`NDCA-based personnel.
`
`4.
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`Practical Problems
`
`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. “[G]arden-variety delay associated with transfer is not to be taken into consideration when
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`Case 6:21-cv-00528-ADA Document 55 Filed 03/01/22 Page 15 of 20
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`ruling on a § 1404(a) motion to transfer” but delay in already protracted litigation may account for
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`some weight. In re Radmax, 720 F.3d at 289.
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`“Particularly, the existence of duplicative suits involving the same or similar issues may
`
`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.
`
`21, 2013). The interests of justice may be best served by transferring ancillary matters pending in
`
`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). “[T]he ability to transfer a
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`case to a district with numerous cases involving some overlapping issues weighs at least slightly
`
`in favor of such a transfer.” In re Apple, 979 F.3d at 1344. But district courts should not rely “on
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`considerations of judicial economy arising after the filing of the lawsuit or the transfer motion,”
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`such as, for example, suits filed in the transferor district after a request to transfer. In re Netscout
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`Sys., No. 2021-173, 2021 U.S. App. LEXIS 30500, at *12 (Fed. Cir. Oct. 13, 2021). Further, “the
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`mere co-pendency of infringement suits in a particular district” does not automatically tip transfer
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`in one direction or the other. Id. at *13.
`
`Apple contends that this factor favors transfer, relying heavily on BillJCo’s prosecution of
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`two other infringement actions in the Eastern District of Texas (“EDTX”). BillJCo has sued Cisco
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`Systems, Inc. and Hewlett-Packard Enterprise in the EDTX, accusing them of infringing some of
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`the Asserted Patents. See ECF No. 37 at 4. Apple first contends that BillJCo’s prosecution of these
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`cases in the EDTX betrays BillJCo’s comfort in litigating infringement actions in multiple fora.
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`From this, Apple concludes that BillJCo cannot “complain about” transfer. ECF No. 26 at 11–12.
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`Apple is willing to defend other cases in this District; should it be precluded from seeking to
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`Case 6:21-cv-00528-ADA Document 55 Filed 03/01/22 Page 16 of 20
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`transfer this Action elsewhere? The Court thinks not. Likewise, BillJCo’s willingness to litigate in
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`two venues in Texas does not mean it is convenient for BillJCo to litigate in any forum.
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`Apple also contends that transferring this Action along with the EDTX actions to the
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`NDCA serves judicial economy and favors transfer under this factor. ECF No. 37 at 4. Apple
`
`argues that “[i]t would be much more efficient and economical to have all of these cases
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`adjudicated by a single judge in the NDCA.” Id. The defendants in the EDTX actions had filed
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`motions to transfer the EDTX actions to the NDCA, but Judge Gilstrap denied those motions on
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`February 16, 2022. See ECF No. 48. Apple’s argument is, therefore, moot. But even if the EDTX
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`defendants intend to file petitions for mandamus from those denials, this Court has no assurance
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`the Federal Circuit will grant court. This Court will not have the fate of this factor rest entirely on
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`events outside of this Court’s control that may not come to pass. This factor is neutral.
`
`C.
`
`Public Interest Factors
`
`1.
`
`Court Congestion
`
`The relevant inquiry under this factor is “[t]he speed with which a case can come to trial
`
`and be resolved.” In re Genentech, 566 F.3d at 1347; In re Apple, 979 F.3d at 1343. A faster
`
`average time to trial means more efficient and/ economical resolutions of the claims at issue. That
`
`said, “[a] court’s general ability to set a fast-paced schedule is not particularly relevant to this
`
`factor.” In re Apple, 979 F.3d at 1344. Moreover, when other relevant factors weigh in favor of
`
`transfer or are neutral, “then the speed of the transferee district court should not alone outweigh
`
`all of those other factors.” In re Genentech, 566 F.3d at 1347.
`
`The Federal Circuit has held that a difference in the number of pending cases between the
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`transferor and transferee forums is “too tenuously related to any differences in speed by which
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`these districts can bring cases to trial.” Id. In another case, it has opined that a “proper” analysis
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`Case 6:21-cv-00528-ADA Document 55 Filed 03/01/22 Page 17 of 20
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`“looks to the number of cases per judgeship and the actual average time to trial.” In re Juniper
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`Networks, Inc., No. 2021-156, 2021 U.S. App. LEXIS 29812, at *8 (Fed. Cir. Oct. 4, 2021).
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`Apple argues that this Court is more congested because there are more pending patent case
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`here than in the NDCA. ECF No. 26 at 12. It should come as no surprise to either party that federal
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`judges preside over more than just patent cases. BillJ