Case 6:21-cv-00622-ADA Document 81 Filed 02/24/23 Page 1 of 9
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`XR COMMUNICATIONS, LLC, dba,
`VIVATO TECHNOLOGIES,
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`PLAINTIFF,
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`v.
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`ASUSTEK COMPUTER INC.
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`DEFENDANT.
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`Civil Action No. 6:21-cv-00622-ADA
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`JURY TRIAL DEMANDED
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`FILED UNDER SEAL
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`DEFENDANT ASUSTEK COMPUTER INC.’S REPLY
`MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION
`TO TRANSFER VENUE
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`Case 6:21-cv-00622-ADA Document 81 Filed 02/24/23 Page 2 of 9
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
`FILED UNDER SEAL
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`TABLE OF CONTENTS
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`A. XR’s Timeliness Argument is Moot ................................................................................... 1
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`B. Both the Rule 1404(a) Public and Private Interest Factors Favor Transfer ........................ 1
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`C. Conclusion .......................................................................................................................... 5
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`i
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`Case 6:21-cv-00622-ADA Document 81 Filed 02/24/23 Page 3 of 9
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`A.
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`XR’s Timeliness Argument is Moot
`Plaintiff XR’s argument that Defendant AUSTeK’s transfer motion is untimely (Opp. at 2-
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`4) is wrong. In granting ASUSTeK’s Motion for leave outside the OGP deadline, the Court already
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`determined (Dkt. 42 at 3-4, Dkt. 50 at 1-2) that ASUSTeK had good cause to do so.1
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`B.
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`Both the Rule 1404(a) Public and Private Interest Factors Favor Transfer2
`Local Interests. XR argues that the local interests favor the WDTX because ASUSTeK
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`is a foreign corporation and the case involves certain WiFi standards purportedly governed by the
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`WiFi Alliance. Opp. at 4. But this argument is hollow. XR omits that no deposition has been
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`scheduled for the Wifi Alliance and XR identifies no critical documents despite XR receiving extra
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`time from this Court for venue discovery.3 XR further ignores that: (i) XR itself is based in the
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`CDCA; (ii) ACI, an ASUSTeK-related third party that actually sells the accused products in the
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`US, is in the NDCA; and (iii) XR’s first-filed actions were in the CDCA. Mot. at 3-4.
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` See Ex.
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`1. XR does not even allege that it has any connection to WDTX because it has none. XR’s
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`desperate argument that WiFi Alliance is in the WDTX and testimony of its representatives might
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`be necessary if the authenticity of its documents is challenged (Opp. at 4) does not overwhelm
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`those facts. Mot. at 4-5, 10-11. See also Betty’s Best, Inc. v. Yuyao Aggpo Elec. Tech. Co., No.
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`1:22-CV-1078-RP, 2022 WL 17724417, at *3 (W.D. Tex. Dec. 15, 2022) (“the local interest is in
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`having the case decided in California” where plaintiff was based in California).
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`1 See OGP 4.1 at 5 (in filing motion for transfer outside deadline provided, “a movant must show
`good cause for any delay and seek leave of court”).
`2 “Ex. _” refers to the exhibits to the Declaration of Jonathan K. Waldrop filed concurrently
`herewith
`3 Wi-Fi Alliance has also already objected to the deposition and document subpoena issued to it in
`a parallel litigation pending in WDTX. See Exs. 2, 3.
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
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`Familiarity with Legal Issues and Conflict of Laws. As ASUSTeK showed (Mot. at 7-
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`8), the CDCA has addressed issues related to the ’728 and ’376 patents. The ’235 patent is related
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`to those other patents. Thus, the CDCA is familiar with important and nuanced legal issues relevant
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`to this litigation. As to the cases XR identifies in the WDTX on the ’235 patent (Opp. at 4-5),
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`almost all defendants in those litigations (Amazon, Google, Dell, Apple) have also moved to
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`transfer venue to California. This Court has already stayed the Apple litigation based on transfer
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`as directed by the Federal Circuit. See In re Apple Inc., 52 F.4th 1360 (Fed. Cir. 2022). Thus, those
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`cases, which are in the transfer process, do not warrant keeping this action in the WDTX. XR filed
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`in the CDCA first (including against ASUSTeK) and those cases are farther along, and thus venue
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`is more appropriate there. Indeed, all of the named inventors and other important witnesses have
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`been deposed in the cases in the CDCA venue and XR’s attorneys have asked witnesses about
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`CDCA proceedings and XR has responded to discovery by referencing information produced in
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`the CDCA actions. Moreover, XR’s discovery responses refer to cases in the CDCA depositions
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`in those cases, and documents produced by Intel (a California company). See Ex. 4 at 15-16
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`(response to interrogatory Nos. 7-8, 11, 18). At deposition, XR’s witnesses were asked and even
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`referenced prior testimony in the CDCA actions.
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`Court congestion. XR does not dispute that the CDCA has a faster time to trial and is less
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`congested than this Court. XR instead relies on the fact that this case was scheduled for trial in the
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`summer of 2023. But as XR knows, XR moved the case schedule because of third party discovery
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`(the chip makers in California) and the case has no set trial date. See Dkt. 75 at 2.
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`Ease of Access to Sources of Proof. In arguing that this factor does not support transfer,
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`XR contends that: (i) ASUSTeK has not shown that ACI has relevant documents; (ii) the chip
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`suppliers and their documents are “scattered” around the United States; (iii) relevant documents
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`2
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
`FILED UNDER SEAL
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`can be produced electronically; and (iv) WiFi Alliance’s presence in the WDTX weighs against
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`transfer. Opp. at 7-9. Those arguments are baseless.
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`Contrary to XR’s arguments, ACI, which is the ASUSTeK entity that imports and sells the
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`accused products, has relevant information going to those sales and XR’s alleged damages, in the
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`NDCA. Dkt. 44 ¶¶ 9, 11. More importantly, it is the entity responsible for the infringing conduct,
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`to the extent there is any. While the primary chipmaker suppliers may have offices around the
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`country, they are headquartered in California and subpoenas have been served in California. (Mot.
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`at 4-5).
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` See Ex. 1. And, of course, XR itself is in the CDCA;
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`see, e.g., QES Pressure Control LLC v. Zurich Amer. Ins. Co., No. 4:20-CV-50-DC-DF, 2020 WL
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`6821335, at *5 (W.D. Tex. Aug. 21, 2020) (noting that “Courts analyze this factor in light of the
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`distance that documents, or other evidence, must be transported from their existing location to the
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`trial venue” and “[p]resumably, the bulk of the discovery material relating to a corporate party is
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`located at the corporate headquarters”). As shown above, WiFi Alliance’s presence in the WDTX
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`does not change the analysis.4
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`Convenience for Willing Witnesses. Contrary to XR’s argument (Opp. at 10), as
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`ASUSTeK showed, ACI is the importer/ seller of the accused products and its testimony is relevant
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`to infringement and damages. That one purported ACI employee works remotely in the WDTX
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`(Opp. at 10) is irrelevant; ACI’s headquarters (its relevant witnesses) are in the NDCA. Mot. at 3-
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`4.
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`4 WSOU Investments, LLC v. Microsoft Corp., No. 6:20-cv-00454-ADA, 2021 WL 1298935 (W.D.
`Tex. Apr. 7, 2021) (Opp. at 9) is inapposite. There the issue was transfer from Waco (where plaintiff
`had its documents) to Austin, where neither party had documents. Id. at *3. In contrast, here, XR is
`located in the CDCA, ACI documents are in the NDCA and the primary suppliers are mostly
`headquartered in California. Access to sources of proof is easiest there.
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`3
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`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
`FILED UNDER SEAL
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`XR argues that the pendency of its other cases in the WDTX makes it more convenient for
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`its employees to travel to the WDTX than the CDCA. Opp. at 11. XR does not state where any of
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`these witnesses are located in the first instances (likely because XR itself and its employees are in
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`the CDCA) or explain why it is more convenient to attend multiple trial in another state. Nor does
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`XR indicate the status/schedule of those other cases and when these witnesses would be traveling
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`for them to suggest convenience. Thus, it provides only self-serving facts to support its claim that
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`the pendency of other cases makes WDCA more convenient for those witnesses for this case.
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`XR also baselessly claims Ms. Chen did not investigate the assertions in her declaration
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`and that it should be disregarded. Opp. at 11. Ms. Chen, an ASUSTeK Director, indicates in her
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`Declaration: (i) that her statements are based on her “personal knowledge” and discussions with
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`other ASUSTeK personnel (i.e., her research); (ii) that ACI is responsible for importing and selling
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`the accused products in the US, is based and stores its records in California; and (iii) the identity
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`and location of ASUSTeK’s primary chip suppliers, including the specific identities and locations
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`of their point-people and the bases for her statements (with citations). Dkt. 44 ¶¶ 1, 6, 9, 12-15.5.
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`Compulsory Process. XR argues that transfer is improper because third-party witnesses
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`are “spread out all around the country.” Opp. at 12, 14. But what matters is not whether there may
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`be third-party witnesses in places other than within the subpoena power of the WDTX, CDCA or
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`NDCA, only which of those districts can compel the most (and most important) unwilling
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`witnesses to appear. Those districts are CDCA or NDCA, where XR resides, several chipmakers
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`may be subpoenaed, ACI is located and/or at least one inventor resides. Mot. at 3-5, 10-11.6
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`5 XR has had months to depose Ms. Chen to challenge her declaration but never did.
`6 It is hardly speculation to conclude that relevant, most knowledgeable witnesses will be located
`at a company’s principal place of business. XR’s ad nauseum reliance on Atlas Global v. A
`ASUSTeK, No. 6:21-cv-00820, Dkt. 67 (W.D. Tex. Sept. 23, 2022) – which is sealed – is misplaced.
`That case did not involve MU-MIMO beamforming.
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`4
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`Case 6:21-cv-00622-ADA Document 81 Filed 02/24/23 Page 7 of 9
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`All other practical problems. Due to the majority of potential witnesses being in the
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`CDCA or elsewhere in California, and the fact that XR has no presence in the WDTX, this factor
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`also favors transfer. Correct Transmission LLC v. ADTRAN, Inc., No. 6:20-CV-00669-ADA, 2021
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`WL 1967985, at *5 (W.D. Tex. May 17, 2021). XR focuses on a single patent to argue that the
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`CDCA will not have familiarity with the patents as compared to the WDTX (Opp. at 15), but as
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`shown the CDCA is already well versed in the patent issues in this litigation given it already has
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`or is presiding over litigation on the same or related patents (e.g., the ’728 and ’376 patents), and
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`many of the cases related to the ’235 patent have filed motions to transfer to California as well.
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`NDCA in the Alternative. XR does not dispute that the NDCA has fewer active patent
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`cases than this Court. When addressing court congestion for the CDCA versus the WDTX, XR
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`downplays the time to trials issue, while it inflates it here. Contrary to XR’s assertion that ACI is
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`irrelevant to this litigation, ACI is responsible for importing, distributing, processing, fulfilling
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`orders and providing sales support for products sold to US-based customers for the accused
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`products. Dkt. 44 ¶ 6. Thus, ACI’s presence in the NDCA is relevant and important to the
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`convenience of witnesses and availability of evidence in the NDCA and ASUSTek’s defenses. XR
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`also ignores the fact that while other California-based entities (including chip suppliers) are not
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`based in the NDCA, the NDCA would still be a far more convenient venue for them as compared
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`to the WDTX. Thus, the WDTX cannot be said to have “just as much of an interest” in this case
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`when the center of gravity of the case is in California, where XR itself and many relevant witnesses
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`are located.
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`C.
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`Conclusion
`For the foregoing reasons, and those set forth in the Motion, ASUSTeK’s motion to transfer
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`venue should be granted in its entirety.
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`5
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`FILED UNDER SEAL
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`Dated: February 17, 2023
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`Respectfully submitted,
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`/s/ Jonathan K. Waldrop
`Jonathan K. Waldrop (CA Bar No. 297903)
`(Admitted in this District)
`jwaldrop@kasowitz.com
`Marcus A. Barber (CA Bar No. 307361)
`(Admitted in this District)
`mbarber@kasowitz.com
`John W. Downing (CA Bar No. 252850)
`(Admitted in this District)
`jdowning@kasowitz.com
`KASOWITZ BENSON TORRES LLP
`333 Twin Dolphin Drive, Suite 200
`Redwood Shores, CA 94065
`Phone: (650) 453-5170
`Fax: (650) 453-5171
`
`Charles Abraham Naggar
`(Admitted pro hac vice)
`cnaggar@kasowitz.com
`Joshua A. Whitehill
`(Admitted pro hac vice)
`jwhitehill@kasowitz.com
`KASOWITZ BENSON TORRES LLP
`1633 Broadway
`New York, NY 10019
`Telephone: (212) 506-1700
`Facsimile: (212) 506-1800
`
`Allen F. Gardner (TX Bar No. 24043679)
`Allen@allengardnerlaw.com
`ALLEN GARDNER LAW, PLLC
`609 S. Fannin
`Tyler, TX 75701
`Phone: (903) 944-7537
`Fax: (903) 944-7856
`
`Attorneys for Defendant
`ASUSTEK COMPUTER INC.
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`Case 6:21-cv-00622-ADA Document 81 Filed 02/24/23 Page 9 of 9
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
`FILED UNDER SEAL
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing instrument was served or
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`delivered electronically via email to all counsel of record, on this 17th day of February, 2023.
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`/s/ Jonathan K. Waldrop
`Jonathan K. Waldrop
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