Case 6:21-cv-00667-ADA Document 67 Filed 06/08/22 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`VOIP-PAL.COM, INC.
`Plaintiff,
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`v.
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`GOOGLE LLC
`Defendant.
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`§
`§
`§
`§
`§
`§
`§
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`Civil No. 6:21-cv-00667-ADA
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`[PUBLIC VERSION]
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` ORDER GRANTING MOTION TO TRANSFER VENUE
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`Defendant Google LLC (“Google”) filed its Motion to Transfer (the “Motion”) on
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`November 11, 2021. ECF No. 24. Plaintiff VoIP-Pal.com, Inc. (“VoIP”) filed its Opposition to
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`Google’s Motion on March 22, 2022. ECF No. 46. Google filed its Reply on May 6, 2022. ECF
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`No. 53. After careful consideration of the briefing, the Court GRANTS Google’s Motion.
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`I.
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`FACTUAL BACKGROUND
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`Plaintiff VoIP is a Nevada corporation with its principal place of business in Waco, Texas.
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`ECF No. 1 ¶ 1. Defendant Google is a Delaware corporation with its principal place of business in
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`Mountain View, California. ECF No. 17 ¶ 2. VoIP filed a complaint against Google alleging
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`infringement of U.S. Patent Nos. 8,630,234 (the “’234 patent”) and 10,880,721 (the “’721 patent,”
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`collectively the “Asserted Patents”) on June 25, 2021. ECF No. 1 ¶¶ 9-10. The Asserted Patents
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`describe systems, apparatuses, and methods for providing an access code to roaming mobile
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`communication devices such as smartphones to enable access to suitable communication routing
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`infrastructure. Id. ¶ 25. The selection of the communication channel for a call can be optimized
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`based on the calling device’s current location. Id. VoIP accuses Google’s product Google Fi of
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`infringing the Asserted Patents. Id.
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`Specifically, VoIP alleges that Google Fi is an online messaging and communication
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`platform which includes an Internet Protocol Multimedia Subsystem (IMS) that delivers
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`communications services over an IP network. Id. ¶ 26. One feature Google Fi implements is Voice
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`Over WiFi (“VoWiFi”), which allows any WiFi network to access the evolved packet core
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`architecture provided by Google Fi’s calling system via an evolved packet data gateway at the
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`border between the public Internet and a mobile core of the Google Fi calling system. Id. ¶ 27.
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`That gateway securely connects a mobile device to the core, allowing the device to use a WiFi
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`connection like it would use a traditional cellular data connection. Id. ¶ 27. Google Fi also enables
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`mobile roaming by producing an access code identifying a communication channel useable by the
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`mobile telephone or device to initiate a call using the channel. Id. ¶ 28. Within Google Fi, the
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`access code is based on a location identifier and/or based on a location pre-associated with the
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`mobile telephone or device. Id.
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`While VoIP’s principal place of business is here in Waco, only Chief Financial Officer
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`Kevin Williams works in Waco. ECF No. 53-1 ¶ 3. Moreover, until recently VoIP’s principal place
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`of business was in Bellevue, Washington—VoIP moved to Waco in March of 2021, less than one
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`year before it filed this lawsuit. Id.
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`II.
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`LEGAL STANDARD
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`In patent cases, motions to transfer under 28 U.S.C. § 1404(a) are governed by the law of
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`the regional circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). Section
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`1404(a) provides that, “[f]or the convenience of parties and witnesses, in the interest of justice, a
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`district 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 Section 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. 2008)
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`(en banc) (“Volkswagen II”). Answering that question requires a determination of whether the
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`proposed transferee venue is proper. A plaintiff may establish proper venue by showing that the
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`defendant committed acts of infringement in the district and has a regular and established place of
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`business there. 28 U.S.C. § 1400(b). A defendant has a regular and established place of business
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`in the district if the plaintiff proves that there is a “physical place in the district,” that it is a “regular
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`and established place of business,” and lastly that it is “the place of the defendant.” In re Cray Inc.,
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`871 F.3d 1355, 1360 (Fed. Cir. 2017).
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`Additionally, Fifth Circuit courts “should . . . grant” a § 1404(a) motion if the movant can
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`show his proposed forum is “clearly more convenient.” Volkswagen II, 545 F.3d at 315. The Fifth
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`Circuit further held that “[t]he determination of ‘convenience’ turns on a number of public and
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`private interest factors, none of which can be said to be of dispositive weight.” Action Indus., Inc.
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`v. US. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004). The private factors include: “(1) the
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`relative ease of access to sources of proof; (2) the availability of compulsory process to secure the
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`attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical
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`problems that make trial of a case easy, expeditious and inexpensive.” In re Volkswagen AG, 371
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`F.3d 201, 203 (hereinafter “Volkswagen I”) (5th Cir. 2004) (citing Piper Aircraft Co. v. Reyno,
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`454 U.S. 235, 241 n.6 (1982)). The public factors include: “(1) the administrative difficulties
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`flowing from court congestion; (2) the local interest in having localized interests decided at home;
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`(3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of
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`unnecessary problems of conflict of laws of the application of foreign law.” Id.
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`The burden to prove that a case should be transferred for convenience falls on the moving
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`party. Volkswagen II, 545 F.3d at 314. Thus, the movant must demonstrate that the alternative
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`venue clearly more convenient than the plaintiff’s chosen forum. Id. at 315. Although the
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`plaintiff’s choice of forum is not a separate factor entitled to special weight, respect for the
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`plaintiff’s choice of forum is encompassed in the movant’s elevated burden to “clearly
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`demonstrate” that the proposed transferee forum is “clearly more convenient” than the forum in
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`which the case was filed. Id. at 314–315. While “clearly more convenient” is not necessarily
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`equivalent to the “clear and convincing” evidence standard, the moving party “must show
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`materially more than a mere preponderance of convenience, lest the standard have no real or
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`practical meaning.” Quest NetTech Corp. v. Apple, Inc., No. 2:19-cv-118, 2019 WL 6344267, at
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`*7 (E.D. Tex. Nov. 27, 2019).
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`III.
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`ANALYSIS
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`A. VoIP could have brought this suit in the Northern District of California.
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`The preliminary question in any transfer analysis under 28 U.S.C. § 1404(a) is whether the
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`plaintiff could have properly brought its lawsuit in the proposed transferee forum. Volkswagen II,
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`545 F. 3d at 312. VoIP certainly could have. Under 28 U.S.C. § 1400(b), one location where venue
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`in a patent lawsuit is proper is where the defendant has committed acts of infringement and
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`maintains a regular and established place of business. Google’s principal place of business is in
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`the Northern District of California, and Google has sold the Accused Products within the district
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`as well. VoIP does not dispute that this threshold inquiry is satisfied.
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`B. The private interest factors favor transfer.
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`a. The relative ease of access to sources of proof favors transfer.
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`“In considering the relative ease of access to proof, a court looks to where documentary
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`evidence, such as documents and physical evidence, is stored.” Fintiv Inc. v. Apple Inc., No. 6:18-
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`cv-00372, 2019 WL 4743678, at *2 (W.D. Tex. Sept. 10, 2019). The question properly focuses on
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`“relative ease of access, not absolute ease of access.” In re Radmax, 720 F.3d 285, 288 (5th Cir.
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`2013) (emphases in original). And “[i]n patent infringement cases, the bulk of the relevant
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`evidence usually comes from the accused infringer. Consequently, the place where the defendant’s
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`documents are kept weighs in favor of transfer to that location.” In re Apple Inc., 979 F.3d 1332,
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`1340 (Fed. Cir. 2020).
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`Here, Google argues that its employees with relevant knowledge of the accused
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`technologies are “primarily” based in the Northern District of California, and none are in the
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`Western District of Texas. ECF No. 24-1 (“Rope Decl.”) ¶ 5. Google’s technical documents about
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`products and services are normally created and maintained by the employees working on those
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`products and services. Id. ¶ 4. Google further argues that there is no indication that any evidence
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`is present in this District and points out that VoIP itself maintains documents in the Northern
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`District of California. ECF No. 53 at 3; ECF No. 54-1 at 4. Thus, Google argues, “the geographic
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`locus of evidence” favors transfer. ECF No. 53 at 3.
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`In rebuttal, VoIP points out that Google has failed to explain how its electronic documents
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`are more easily accessible in the Northern District of California when it has 1,755 employees
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`working in the Western District of Texas. ECF No. 46 at 7. VoIP argues: “for Google, which has
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`become one of the most successful corporations in the world specifically because it is able process
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`prodigious amounts of electronic data daily, to argue that it is inconvenient for it to provide
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`documents in WDTX, is simply not credible.” Id.
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`The Court finds this factor to weigh in favor of transfer. Google has shown that both Google
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`and VoIP maintain evidence in the Northern District of California. ECF No. 54-1 at 4; ECF No.
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`24-1 ¶¶ 4-9. The accused technologies in this case were developed at Google’s Mountain View
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`headquarters, the “strategic center” of Google’s business. Rope Decl. ¶¶ 2, 5. This Court must not
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`only consider the location of Google’s documents, all of which are in the Northern District of
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`California, but also the location of “document custodians” and “where documents are created and
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`maintained, which may bear on the ease of retrieval.” In re Google LLC, No. 2021-178, 2021 WL
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`5292267, at *2 (Fed. Cir. Nov. 15, 2021). Google identified two engineers responsible for Google
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`Fi,
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` and
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`, and
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`two responsible for Hangouts,
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` and
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`. Rope Decl. ¶¶ 6-9. Those four engineers are in the Northern District of California. Id.
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`Because the employees responsible for development of the accused technologies are also the ones
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`charged with maintaining relevant documents, the location of Google’s custodians further shifts
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`this factor in favor of transfer. VoIP is correct that Google has 1,755 employees here in the Western
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`District of Texas, but until Google or VoIP indicates which of those 1,755, if any, have access to
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`the electronic documents relevant to this case, the Court cannot find that Google’s employees here
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`in the Western District of Texas can access the evidence just as easily. Thus, this factor weighs in
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`favor of transfer.
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`b. The compulsory process factor weighs slightly against transfer.
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`The Federal Rules permit a court to subpoena a witness to attend trial only (a) “within 100
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`miles of where the person resides, is employed, or regularly transacts business in person”; or (b)
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`“within the state where the person resides, is employed, or regularly transacts business in person,
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`if the person . . . is commanded to attend a trial and would not incur substantial expense.” Fed. R.
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`Civ. P. 45(c)(1)(A), (B)(ii); Gemalto S.A. v. CPI Card Grp. Inc., No. 15-CA-0910, 2015 WL
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`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 Inc., No. 6:18-cv-
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`00372, 2019 WL 4743678 at *14 (citing Volkswagen II, 545 F.3d at 316). And “when there is no
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`indication that the witness is willing,” the Court must presume that its subpoena power will be
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`necessary to secure the witness’ attendance. In re DISH Network LLC, No. 2021-182, 2021 WL
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`4911981, at *3 (Fed. Cir. Oct. 21, 2021) (quoting In re HP, Inc., No. 2018-149, 2018 WL 4692486,
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`at *3 n.1 (Fed. Cir. Sept. 25, 2018)). This factor “weigh[s] heavily in favor of transfer when more
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`third-party witnesses reside within the transferee venue than reside in the transferor venue.” In re
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`Apple, 581 F. App’x 886, 889 (Fed. Cir. 2014).
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`To support transfer, Google points to prior art witnesses Paquet and Walker located in the
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`Northern District of California whom Google intends to use to prove invalidity. ECF No. 24 at 11.
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`Since these witnesses have provided no indication of their willingness to attend trial, Google
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`argues that the Northern District of California’s subpoena power will be necessary. Id.
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`For its part, VoIP points to witnesses George Brunt and Marcus Redding in Dallas and
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`Austin whom VoIP asserts will require this Court’s subpoena power to compel attendance. ECF
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`No. 46 at 8. Like Google’s witnesses, VoIP’s Dallas and Austin witnesses have not indicated a
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`willingness to attend trial. Id. VoIP further argues that Google failed to show that its “cherry
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`picked” prior-art witnesses are relevant. Id.
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`The Court finds this factor weighs slightly against transfer. Google cites two witnesses in
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`its desired forum that require the Northern District of California’s compulsory process; VoIP
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`points to two that require this Court’s compulsory process. The Court discounts the likelihood that
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`Google will call its “cherry picked” prior art witnesses because Google served invalidity
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`contentions that identify 57 publications and 19 systems. Parties rarely call prior art witnesses to
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`trial, and even if Google did, Google is statistically unlikely to select the two prior art references
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`involving Paquet and Walker from among its 76 total options. The Court does not categorically
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`disregard these prior art witnesses. In re Hulu, LLC, 2021 WL 3278194, at *3 (Fed. Cir. Aug. 2,
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`2021). Because the Court presumes witnesses are unwilling unless they indicate otherwise, the
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`Court counts Google’s witnesses as unwilling witnesses. DISH Network, 2021 WL 4911981, at
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`*3. Similarly, the Court deems VoIP’s two witnesses to be unwilling. Id. The same number of
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`unwilling witnesses reside in the Northern District of California as the Western District of Texas,
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`but Google is unlikely to call Paquet and Walker. Thus, this factor weighs slightly against transfer.
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`c. The cost of attendance for willing witnesses favors transfer.
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`The most important factor in the transfer analysis is witness convenience. In re Genentech,
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`Inc., 566 F.3d 1338, 1342 (Fed. Cir. 2009). When analyzing this factor, the Court should consider
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`all potential materials and relevant witnesses. Alacritech Inc. v. CenturyLink, Inc., No. 2:16-CV-
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`00693, 2017 WL 4155236, at *5 (E.D. Tex. Sept. 19, 2017). This factor appropriately considers
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`the cost of attendance of all willing witnesses, including both party and non-party witnesses. In re
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`Pandora Media, LLC, No. 2021-172, 2021 WL 4772805, at *2–3 (Fed. Cir. Oct. 13, 2021). “Courts
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`properly give more weight to the convenience of non-party witnesses than to party witnesses.”
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`Netlist, Inc. v. SK Hynix Inc., No. 6:20-CV-00194-ADA, 2021 WL 2954095, at *6 (W.D. Tex.
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`Feb. 2, 2021).
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`“When the distance between an existing venue for trial of a matter and a proposed venue
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`under § 1404(a) is more than 100 miles, the factor or inconvenience to witnesses increases in direct
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`relationship to the additional distance to be travelled.” Volkswagen II, 545 F.3d at
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`317 (quoting Volkswagen I, 371 F.3d at 203). But the Federal Circuit has clarified that courts
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`should not “rigidly” apply the 100-mile rule in cases where witnesses would be required to travel
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`a significant distance no matter where they testify. In re Apple, 979 F.3d at 1342 (discussing
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`witnesses traveling from New York) (citing Volkswagen II, 545 F.3d at 317).
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`Rather, “the inquiry should focus on the cost and inconvenience imposed on the witnesses
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`by requiring them to travel to a distant forum and to be away from their homes and work for an
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`extended period of time.” In re Google, LLC, No. 2021-170, slip op. at 9 (Fed. Cir. Sept. 27, 2021).
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`The Federal Circuit has indicated that time away from an individual’s home is a more important
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`metric than distance. Id. Time and distance frequently and naturally overlap because witnesses
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`usually take more time to travel farther away, thereby increasing the time away from home.
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`Google’s declarant, Andrew Rope, “understand[s]” that witnesses relevant to Google Fi
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`are based at Google’s Mountain View, California campus. Rope Decl. ¶ 7. Specifically, Rope
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`points out software engineers
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` and
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`. Id. Regarding Hangouts, Google
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`points to engineers
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` and
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` as relevant employees based in Mountain
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`View. Id. ¶ 9. Other software engineers with knowledge about Hangouts are based in Kirkland,
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`Washington, and Stockholm, Sweden. Id. Google “is aware” of no employee in the Western
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`District of Texas with relevant knowledge on either Google Fi or Hangouts. Id.
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`VoIP’s argument on this factor focuses mainly on deficiencies in Google’s arguments
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`rather than affirmative contentions of its own. ECF No. 46 at 8-11. VoIP points out that Google’s
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`declarant is not a technical employee but a “Senior Legal Project Manager,” that Mr. Rope’s
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`declaration fails to address certain aspects of the accused technologies, and that Mr. Rope
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`apparently relied on no documents to prepare his declaration. Id. VoIP asks this Court not to
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`“reward[] Google for being less than forthcoming” throughout the venue discovery process. Id. at
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`11. Finally, VoIP identifies its own witnesses and inventors, but VoIP argues that the convenience
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`of its own witnesses “is not a factor in the transfer analysis.” Id. at 11. VoIP does not identify the
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`foreign location of the inventors, so the Court cannot determine their convenience.
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`VoIP’s objections to Google’s venue-discovery practices are well-taken, and Mr. Rope’s
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`declaration certainly has its deficiencies. To start, Mr. Rope’s declaration fails to address whether
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`he attempted to locate employees with knowledge about sales, marketing, or finance of the accused
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`products. As VoIP points out, the only conclusion this Court can draw is that Mr. Rope failed to
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`do so. Additionally, Mr. Rope’s perfunctory investigation into relevant technical witnesses raises
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`eyebrows. It strains credibility that only six engineers out of a company of tens of thousands of
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`employees were involved in the design and development of the accused technologies in this case.
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`Moreover, Mr. Rope’s “carefully worded” declaration never concretely states that there are no
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`relevant employees in the Western District of Texas––only that no relevant employees “are known”
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`to be in this District. Rope Decl. ¶ 5 (emphasis added). Most egregiously, Mr. Rope apparently
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`relied on no documents in his venue investigation. ECF No. 47-9 at 9–10. When asked to produce
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`“all documents reviewed or relied upon” by Mr. Rope in preparing his declaration, Google
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`objected and responded that there were none. Id.
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`Due to VoIP's persuasive arguments, the Court discounts the evidentiary value of Mr.
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`Rope’s declaration. VoIP seeks vague relief by asking only that “Google should not be rewarded
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`for being less than forthcoming.” ECF No. 46 at 11. VoIP does not ask the Court to strike his
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`declaration or for an adverse inference, so the Court will not sua sponte grant this relief. The Court
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`will merely resolve all disputed facts against Mr. Rope’s declaration when VoIP supplies any
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`evidence at all that rebuts the challenged parts of his declaration. Scramoge Tech. Ltd. v. Apple,
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`Inc., No. 6:21-CV-00579-ADA, 2022 WL 1667561, at *3–4 (W.D. Tex. May 25, 2022) (finding
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`it appropriate to give no weight to contested parts of the declaration of repeatedly unreliable
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`declarant Mark Rollins).
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`Still, the Court finds that this factor weighs in favor of transfer. While the Rope declaration
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`has little evidentiary value, even its little evidentiary value is more than the evidence that VoIP
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`offers against transfer, which is none. VoIP presents no declaration, deposition testimony, or any
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`other evidence to rebut Google’s thin venue arguments. Mr. Rope’s identification of ,
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`,
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`, and as relevant witnesses in the Northern
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`District of California remains unchallenged. ECF No. 24-1 ¶¶ 7, 9. VoIP has convinced the Court
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`that Mr. Rope likely made a deficient investigation before declaring, “I am aware of no Google
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`engineers or managers” who work on the accused products in the Western District of Texas, but
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`VoIP does not supply the Court with evidence of any relevant Google engineers or managers in
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`this District. Id. Even if the Court were to discredit Mr. Rope’s statement entirely for being formed
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`based on an insufficient investigation, there remains no affirmative evidence of relevant Google
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`engineers here in the Western District of Texas. Thus, the Court finds this factor favors transfer.
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`d. Other practical problems are neutral.
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`When considering the private interest factors, courts must consider “all other practical
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`problems that make trial of a case easy, expeditious and inexpensive.” Volkswagen II, 545 F.3d at
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`315. “Particularly, the existence of duplicative suits involving the same or similar issues may
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`create practical difficulties that will weigh heavily in favor or against transfer.” PersonalWeb
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`Techs., LLC v. NEC Corp. of Am., Inc., No. 6:11-cv-655, 2013 WL 9600333, at *5 (E.D. Tex. Mar.
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`21, 2013). “[W]here there is a co-pending litigation . . . involving the same patent-in-suit, . . .
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`pertaining to the same underlying technology and accusing similar services, . . . the Federal Circuit
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`cannot say the trial court clearly abuses its discretion in denying transfer.” In re Vistaprint Ltd.,
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`628 F.3d 1342, 1346 n.3 (Fed. Cir. 2010).
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`The Court finds this factor neutral. VoIP filed seven cases in this District on June 25, 2021,
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`each accusing similar technologies. ECF No. 26 at 1. Two of those cases have since been
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`dismissed. VoIP-Pal.com, Inc. v. Apple Inc., No. 6:21-cv-670; VoIP-Pal.com, Inc. v. AT&T Corp.,
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`No. 6:21-cv-671. But the Northern District of California also has experience with these patents:
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`that court presided over five related VoIP cases between 2018 and 2019. ECF No. 27 (“Kelley
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`Decl.”) at 2 ¶¶ 2-5. VoIP argues that Judge Koh’s familiarity with the facts left the Northern
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`District of California when Judge Koh left the bench there. ECF No. 46 at 12. However, other than
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`Judge Koh, Magistrate Judge DeMarchi has handled multiple related cases in the Northern District
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`of California. ECF No. 53 at 4. Thus, both the transferor and transferee forums are familiar with
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`the parties and technologies at issue. And while the co-pending litigation in this Court would
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`normally weigh against transfer, each of those cases are also subject to pending motions to transfer.
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`Accordingly, the Court finds this factor neutral.
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`C. The public interest factors are neutral.
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`a. Court congestion weighs against transfer.
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`The analysis under this factor asks “whether there is an appreciable difference in docket
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`congestion between the two forums.” Parsons v. Chesapeake & Ohio Ry. Co., 375 U.S. 71, 73
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`(1963); Parkervision, Inc. v. Intel Corp., No. 6:20-CV-00108, 2021 WL 401989, at *6 (W.D. Tex.
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`Jan. 26, 2021). The Court considers the “speed with which a case can come to trial and be
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`resolved . . . .” Genentech, Inc., 566 F.3d at 1347. However, court congestion is considered “the
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`most speculative” factor, and when “relevant factors weigh in favor of transfer and others are
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`neutral, then the speed of the transferee district court should not alone outweigh all those other
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`factors.” Id.
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`The Court finds this factor to weigh against transfer. Google argues that the median time
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`to trial in both districts is comparable: 24.1 months for the Northern District of California versus
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`20.1 months for this Court. ECF No. 26-17 at 7. Google also notes that this Court has more pending
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`patent cases and speculates that the caseload will delay this Court’s ability to hold trials. ECF No.
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`24 at 13. But Google uses outdated data for the Northern District of California that is weighted by
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`cases data collected since 2014. ECF No. 26-18 at 2. The statistics show the time-to-trial based on
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`741 cases in the Northern District of California that reached trial since 2014. Id. at 3. Thus, the
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`24.1 month time-to-trial incorporates out-of-date statistics from before the Northern District of
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`California felt the full impact of halting its trials due to the COVID-19 pandemic. More recent
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`statistics show that the average time to trial in patent cases in the Northern District of California is
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`now 45.2 months. Billjco, LLC v. Apple Inc., No. 6:21-CV-00528-ADA, 2022 WL 607890, at *8
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`(W.D. Tex. Mar. 1, 2022).
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`Google correctly notes that this Court has a larger patent caseload, but even so, this Court
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`has been able to hold trials faster than the Northern District of California, with an approximate
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`time to trial of two years. See, e.g., MV3 Partners v. Roku, 6-18-CV-00308 (W.D. Tex., filed Oct.
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`16, 2018) (23.7 months from case filing to trial); CloudofChange, LLC v. NCR Corp., No. 6-19-
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`CV-00513 (W.D. Tex., filed August 30, 2019) (20.3 months from case filing to trial); VLSI Tech.
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`LLC v. Intel Corp., No. 6-21-CV-00057 (W.D. Tex., filed Apr. 11, 2019) (22.4 months from case
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`filing to trial); Freshub, Inc. et al v. Amazon.Com Inc., No. 6-21-CV-00511 (W.D. Tex., filed Jun.
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`24, 2019) (23.7 months from case filing to trial); ESW Holdings, Inc. v. Roku, Inc., No. 6-19-CV-
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`00044 (W.D. Tex., filed Feb. 8, 2019) (25.9 months from case filing to trial); Profectus v. Google,
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`Case 6:21-cv-00667-ADA Document 67 Filed 06/08/22 Page 14 of 16
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`6-20-CV-00101 (W.D. Tex., filed Feb. 10, 2020) (19.6 months from case filing to trial); Jiaxing
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`Super Lighting v. CH Lighting Tech., 6-20-cv-00018 (W.D. Tex., filed Jan. 10, 2020) (21.7 months
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`from case filing to trial); VideoShare v. Google LLC, 6-19-CV-663 (W.D. Tex., filed Nov. 15,
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`2019) (23.8 months from case filing to trial); NCS Multistage v. Nine Energy, No. 6-20-cv-277
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`(W.D. Tex., filed Mar. 24, 2020) (21.8 months from case filing to trial); EcoFactor, Inc. v. Google
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`LLC, No. 6-20-cv-00075 (W.D. Tex., filed Jan. 31, 2020) (24 months from case filing to trial);
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`Densys Ltd. v. 3Shape Trio A/S, 6-19-CV-00680 (W.D. Tex., filed Nov. 26, 2019) (28.3 months
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`from case filing to trial); Appliance Computing III, Inc. v. Redfin Corp., No. 6-20-cv-00376-ADA
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`(W.D. Tex., filed May 11, 2020) (24 months from case filing to trial).
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`Despite this Court’s heavy patent docket, a case transferred to the Northern District of
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`California will take nearly twice as long to reach trial. And as this Court recently noted, “the public
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`has an interest in the rapid resolution of patent disputes (without reference to whether the patent is
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`being worked).” Billjco, 2022 WL 607890 at *8 n.2. The court congestion factor thus weighs
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`against transfer.
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`b. The local interests favor transfer.
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`Under this factor, the Court must evaluate whether there is a local interest in deciding local
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`issues at home. Volkswagen II, 545 F.3d at 317. “A local interest is demonstrated by a relevant
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`factual connection between the events and the venue.” Word to Info, Inc. v. Facebook, Inc., No.
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`3:14-cv-04387-K, 2015 WL 13870507, at *4 (N.D. Tex. Jul. 23, 2015). Accordingly, “the sale of
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`an accused product offered nationwide does not give rise to a substantial interest in any single
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`venue.” In re Hoffmann-La Roche Inc., 587 F.3d 1333, 1338 (Fed. Cir. 2009). “This factor most
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`notably regards not merely the parties’ significant connections to each forum writ large, but rather
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`the ‘significant connections between a particular venue and the events that gave rise to a suit.’” In
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`Case 6:21-cv-00667-ADA Document 67 Filed 06/08/22 Page 15 of 16
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`re Apple, 979 F.3d at 1344 (quoting In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010))
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`(emphasis in original).
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`But courts should not heavily weigh a party’s general contacts with a forum that are
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`untethered from the lawsuit, such as a general presence in the district. Id. Moreover, “little or no
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`weight should be accorded to a party’s ‘recent and ephemeral’ presence in the transferor forum,
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`such as by establishing an office in order to claim a presence in the district for purposes of
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`litigation.” In re Juniper Networks, Inc., 14 F.4th 1313, 1320 (Fed. Cir. 2021) (quoting In re
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`Microsoft Corp., 630 F.3d 1361, 1365 (Fed. Cir. 2011)).
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`The Court finds this factor to weigh in favor of transfer. To be sure, Google has a strong
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`presence within the Western District of Texas—VoIP correctly points out that Google employs
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`over 1,700 people here, leases over 900,000 square feet of office space here, and intends to add
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`5,000 more employees here in the near future. ECF No. 46. But this is not the type of presence
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`courts weigh in analyzing the local interests factor. Apple, 979 F.3d at 1344. Rather, the Court
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`looks to the events that give rise to this lawsuit. Juniper Networks, 14 F.4th at 1320. Accordingly,
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`the Court properly looks to the location where Google’s accused technology was developed: the
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`Northern District of California. ECF No. 24-1 ¶¶ 5, 7, 9. As the Federal Circuit has made clear,
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`the “research[], design[], and develop[ment]” of accused technology within the Northern District
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`of California are “significant factors that give the Northern District of California a legitimate
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`interest in adjudicating the cases ‘at home.’” In re Samsung Elecs. Co., Ltd., 2 F.4th 1371 (Fed.
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`Cir. 2021), cert. denied sub nom. Ikorongo Tex. LLC v. Samsung Elecs. Co., Ltd., 142 S. Ct. 1445
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`(2022).
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`And while the location of VoIP’s headquarters in Waco would normally be entitled to at
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`least some weight, the Court gives no weight to the plaintiff’s location when there is evidence that
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`Case 6:21-cv-00667-ADA Document 67 Filed 06/08/22 Page 16 of 16
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`the presence within the forum is “recent and ephemeral.” Juniper Networks, 14 F.4th at 1320; cf.
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`BillJCo LLC v. Apple, Inc., No. 6:21-cv-00528, 2022 WL 607890 at *9 (W.D. Tex. Mar 1, 2022).
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`VoIP established itself in Waco
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` around one
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` year
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`before it filed this lawsuit, and its “headquarters” here are staffed by one part-time employee. ECF
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`Nos. 53-1 at 1 ¶ 3; 53-2. Such a connection to Waco is insufficient to weigh against transfer.
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`In conclusion, the local interest factor favoring transfer cancels out the court congestion
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`factor that weighs against transfer. Thus, the public interest factors are neutral overall.
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`c. The remaining public interest factors are neutral.
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`The Court finds the “familiarity with governing law” and “avoidance of conflict of laws”
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`factors neutral. Both districts are familiar with the uniform body of federal patent law overseen by
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`the Federal Circuit, and there are no issues with conflict of laws or any foreign law. Thus, both
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`factors are neutral.
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`IV. CONCLUSION
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`In sum, the balance of public and private Volkswagen factors clearly favors transfer. The
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`sources of proof and convenience of willing witnesses favori