Case 6:21-cv-00755-ADA Document 70 Filed 06/10/22 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`GENTEX CORPORATION and INDIGO
`TECHNOLOGIES, LLC,
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`Plaintiffs,
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`THALES VISIONIX, INC.,
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`Case No. 6:21-cv-00755-ADA
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`Involuntary Plaintiff,
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`JURY TRIAL DEMANDED
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`v.
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`PUBLIC VERSION
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`META PLATFORMS, INC. and META
`PLATFORMS TECHNOLOGIES, LLC,
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`Defendants.
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`DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO TRANSFER
`TO THE NORTHERN DISTRICT OF CALIFORNIA
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`Case 6:21-cv-00755-ADA Document 70 Filed 06/10/22 Page 2 of 11
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`I.
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`II.
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`TABLE OF CONTENTS
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`The Relative Ease of Access to Sources of Proof Favors Transfer ........................................ 1
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`The Availability of Compulsory Process Favors Transfer ..................................................... 2
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`III.
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`The Convenience for Willing Witnesses Favors Transfer...................................................... 3
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`IV. Other Factors That Make Trial Easy, Expeditious, Inexpensive Are Neutral ..................... 5
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`V.
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`The Public-Interest Factors Favor Transfer or Are Neutral ................................................. 5
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`Case 6:21-cv-00755-ADA Document 70 Filed 06/10/22 Page 3 of 11
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`In re Apple Inc.,
`2021 WL 5291804 (Fed. Cir. 2021)...........................................................................................5
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`In re: Apple Inc.,
`2022 WL 1196768 (Fed. Cir. 2022)...................................................................................2, 4, 5
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`In re: Apple Inc.,
`2022 WL 1676400 (Fed. Cir. 2022)...........................................................................................4
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`Decapolis v. eClinical,
`No. 6:21-CV-00502-ADA, Dkt. 30 (W.D. Tex. Mar. 1, 2022) .............................................1, 5
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`In re Google,
`No. 2022-140, Dkt. 16 (Fed. Cir. May 23, 2022) ......................................................................4
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`In re Horseshoe,
`337 F.3d 429 (5th Cir. 2003) .....................................................................................................5
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`IGS v. Microsoft,
`2022 WL 1314462 (W.D. Tex. Apr. 20, 2022)......................................................................1, 4
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`LoganTree v. Apple,
`2022 WL 1491097 (W.D. Tex. May 11, 2022) .................................................................3, 4, 5
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`WSOU v. Arista,
`2021 WL 6015526 (W.D. Tex. Nov. 5, 2021) ...........................................................................5
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`ii
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`Case 6:21-cv-00755-ADA Document 70 Filed 06/10/22 Page 4 of 11
`Case 6:21-cv-00755-ADA Document 70 Filed 06/10/22 Page 4 of 11
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`TABLE OF ABBREVIATIONS
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`Declaration of Jonathan Wright in Support of Defendants’ Reply in Support of
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`Motion to Transfer Venue to N.D. Cal.
`Declaration of Nicholas Wong in Support of Defendants’ Reply in Support of
`Motion to Transfer Venue to N.D. Cal.
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`Motion to Transfer Venue to N.D. Cal.
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`Motion to Transfer Venue to N.D. Cal.
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`D4
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`ill
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`Case 6:21-cv-00755-ADA Document 70 Filed 06/10/22 Page 5 of 11
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`This action’s center of gravity is in NDCA. Gentex has not disputed that NDCA is where
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`Meta is headquartered, accused functionality was developed, key Meta developers and Gentex’s
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`inventor still reside, and the Oculus financial and marketing witnesses and documents are located.
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`Meta’s accused sensor, camera, and tracking technology for all accused products was designed,
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`developed, and is maintained far from Texas, primarily in NDCA and Washington.
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`Meta followed this Court’s venue approach by first determining the relevant sources of
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`proof and then finding their locations. In contrast, Gentex began by searching for Texas people,
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`then stretching for reasons to include them. Thus, Gentex ensnares irrelevant people by (1) shifting
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`focus away from the accused functionality to unaccused products and peripheral features, and (2)
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`relying on speculative and inaccurate inferences, and unreliable, unsworn, triple hearsay, to allege
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`that Texas people are relevant, such as an employee’s ex-wife who merely helped negotiate his
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`salary 8 years ago. But if Gentex’s approach were applied consistently across venues, the NDCA
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`evidence would further dwarf Gentex’s few, tangential Texas individuals because hundreds or
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`thousands more people (and their documents) in NDCA would become relevant. Whether venue
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`is analyzed under the proper approach or Gentex’s, NDCA is clearly more convenient.
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`I.
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`The Relative Ease of Access to Sources of Proof Favors Transfer
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`The relevant Oculus functionality is sensor, camera, and tracking hardware and algorithms,
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`all of which were designed, developed, and are maintained exclusively outside Texas, largely in
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`NDCA, based on Meta’s extensive investigation. D2 ¶¶ 2-4; D3 ¶¶ 2-3; Dkt. 39-1 ¶¶ 7-10, 12-13;
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`Ex. II at 13-19; Ex. EEE; Ex. GGG at 5. Gentex’s own evidence confirms Defendants’
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`investigation and that NDCA employees developed these features. Dkt. 61-18, ECF 41, 46; Ex. II
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`at 14, 18. The “logical conclusion” is “that the documents are also located in [NDCA] and not in
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`Texas.” IGS v. Microsoft, 2022 WL 1314462, at *3 (WDTX Apr. 20, 2022); Decapolis v. eClinical,
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`1
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`No. 6:21-CV-00502-ADA, Dkt. 30 at 5 (WDTX Mar. 1, 2022). And, it is the development of the
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`accused functionality specifically, not the accused products generally, that weighs most heavily.
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`In re: Apple (“Apple I”), 2022 WL 1196768, at *2-3 (Fed. Cir. 2022). Gentex’s discovery requests
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`belie its attempt in its brief to broaden relevance to anything remotely related to Oculus/AR/VR.
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`The only functionalities Gentex’s requests focus on are for “P2P Pose Solver” tracking code,
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`tracking algorithms, sensors, and cameras. Ex. GG (Rogs 7, 9, 10); Ex. HH (RFPs 15, 22-27).
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`NDCA employee
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`, and his team and others largely
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`in NDCA and Washington developed the other listed functionality. Ex. II at 13-19. Further, all
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`Meta source code that Gentex requested and printed was checked in to Meta’s source code
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`repository by people located exclusively outside Texas, with 57 based in NDCA. D1 ¶ 7; D4 ¶ 2.
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`Messrs.
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` are relevant because they work on the headset and controller
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`cameras and sensors used for tracking—hardware identified throughout the infringement
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`contentions. E.g., Ex. KK at 13, 24; Ex. LL at 7. Those teams have 96 members in NDCA and
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`zero in Texas. D1 ¶ 6.
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`Broader, unaccused Oculus/AR/VR products and functionality have little, if any, weight.
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`But even if the relevance net is cast as wide as Gentex attempts, NDCA has more than 1,100
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`relevant Meta employees (even excluding the Oculus and AR/VR teams that have no Texas
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`members at all but do have members in the NDCA). D1 ¶ 8. Gentex points to dependent claims
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`that recite “displays” and “user interfaces,” but those are not inventive elements, rather they are
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`merely standard components to display results of the allegedly inventive sensing and tracking.
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`II.
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`The Availability of Compulsory Process Favors Transfer
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`Nonparty inventor Eric Foxlin lives in NDCA. Ex. HHH at 2. His declaration that he
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`“would be willing” to come to WDTX provides no enforceable agreement and never commits to
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`2
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`this Court’s jurisdiction for trial. Dkt. 61-25. Absent a trial subpoena, obtaining his evidence
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`remains uncertain, as he refuses to even produce full inventor notebooks or provide them for
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`inspection. Ex. OO at 1-3. Regardless, the NDCA court can compel him to appear.
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`Gentex’s reliance on Carmack, Kang, and the 2014 Oculus acquisition highlights its
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`desperation to build a Texas connection. First, no products had the accused functionality until five
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`years later. Dkt. 61 at 3. Second, Gentex’s assertion that Meta’s deal diligence might have surfaced
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`Gentex’s patents is unfounded speculation and is wrong. D1 ¶ 20. Third, even if the acquisition
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`were relevant, 131 NDCA people were involved, a majority of which are non-parties, in the
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`negotiations and diligence. Ex. PP at 13, Appx. 1; D1 ¶ 10; D3 ¶ 5. The only 2 Texans Gentex
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`identifies as “key,” one Oculus employee (Carmack) and his non-employee ex-wife (Kang): (i)
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`negotiated Carmack’s personal compensation, not the deal; (ii) were on the wrong side of the deal
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`to have evidence of Meta’s diligence or reasons for the deal price; and (iii) Gentex’s “evidence”
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`for their relevance is a triple-hearsay gossip novel with admittedly contrived quotes. Dkt. 61-11 at
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`xx (“Author’s Note”), 348. The same “evidence” shows Carmack was the “godfather” of game
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`design, not any tracking technology, and he did not stay to “talk business” in negotiations (which
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`occurred in NDCA). Dkt. 61-11, 345-346; Ex. YY, 24; see also D2 ¶ 4.
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`III. The Convenience for Willing Witnesses Favors Transfer
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`The few Texas Meta employees Gentex identified are irrelevant and fail to outweigh the
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`more relevant 96 NDCA employees. D1 ¶¶ 6, 8; D4 ¶ 2. Despite extensive discovery, Gentex relies
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`instead on inferences from LinkedIn, web posts, and multi-level hearsay publications. “The
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`convenience of these witnesses is owed no weight” because Gentex fails to show that they have
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`relevant and material knowledge. LoganTree v. Apple, 2022 WL 1491097, at *7 (WDTX May 11,
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`2022). In fact, they do not.
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`Case 6:21-cv-00755-ADA Document 70 Filed 06/10/22 Page 8 of 11
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`, whom Meta identified as a technical witness for venue, spoke to work that did
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`and did not occur in Texas, and he confirms that neither he, nor Carmack, nor any Texas teams
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`developed the accused camera, sensor, or tracking technology. D3 ¶¶ 2-4, 6; Dkt. 39-1 ¶ 10; Ex.
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`II at 23. He
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`that reference relates to
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` referenced on LinkedIn that Gentex relies on;
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`. D3 ¶ 4. Gentex’s remaining “evidence” is also inaccurate, depends on far-fetched
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`inferences and hyperbole to prop up Texas residents as relevant, was not disclosed in discovery,
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`and fails to support venue. E.g., compare D2 ¶¶ 4-6 (
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`; Welch’s, Hooper’s,
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`and Atkins’s work is irrelevant), with Dkt. 61 at 6; D1 ¶ 16. “The relevance of these witnesses is
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`far too speculative” so the Court should “accord[ them] little to no weight.” LoganTree at *7.
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`Regardless, “this factor still strongly favors transfer where the transferee venue would be
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`more convenient for the witnesses overall.” Apple I, at *2. Again, witnesses responsible for the
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`accused functionality carry heavy weight. Id. at *2-3. The history, quantity, and relevance of the
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`96 people in NDCA that actually worked on sensor and tracking functionality, plus those in NDCA
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`that have Oculus financial and marketing information, far outweigh the peripheral people in Texas.
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`D1 ¶¶ 6, 8; D4 ¶ 2; Dkt. 39-1 ¶¶ 14-15; In re Google, No. 2022-140, Dkt. 16 at 9, 11 (Fed. Cir.
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`May 23, 2022) (focusing on the “locus of events” giving rise to suit and “center of gravity” of
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`relevant witnesses). Where the “overwhelming majority of employees that work on the relevant
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`engineering teams reside in [NDCA]” and “virtually none reside in WDTX,” this factor strongly
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`favors transfer. IGS at *4; Apple I at *2. While no squarely relevant teams are in Texas, all have
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`key members in NDCA. Ex. II at 13-19; D1 ¶ 8. And, this factor even more heavily favors NDCA
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`if the relevance net is as wide as Gentex casts it in Texas—Gentex’s approach yields over 1,100
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`relevant NDCA employees. D1 ¶ 8; see also Dkt. 39-1 ¶ 2; In re: Apple Inc., 2022 WL 1676400,
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`Case 6:21-cv-00755-ADA Document 70 Filed 06/10/22 Page 9 of 11
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`at *2 (Fed. Cir. 2022) (isolated Texas witnesses must be viewed “in the context of the record as a
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`whole”). It would be far more convenient to host any of the 6 peripheral (and irrelevant) Texas
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`employees at Meta’s NDCA headquarters for trial than for any of the 96 NDCA employees to
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`descend on Waco, where Meta has no office. See also Ex. SS at 5 (additional NDCA engineers).
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`IV. Other Factors That Make Trial Easy, Expeditious, Inexpensive Are Neutral
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`Meta timely moved to transfer. D1 ¶ 18. Gentex has not established by clear and convincing
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`evidence that this is the “rare and special” situation where any purported delay might be relevant.
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`In re Horseshoe, 337 F.3d 429, 434 (5th Cir. 2003); WSOU v. Arista, 2021 WL 6015526 at *5
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`(WDTX Nov. 5, 2021). Gentex lists past case activity (which need not be repeated after transfer),
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`but no party or witness set foot in Texas for that activity. Fact discovery has begun, but no
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`documents were obtained from, or produced in, Texas, and no one in Texas has been subpoenaed
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`or noticed for deposition. In contrast, a terabyte of data was produced from NDCA, where a witness
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`was also deposed and nonparty subpoenas are pending. D1 ¶¶ 11-13.
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`V.
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`The Public-Interest Factors Favor Transfer or Are Neutral
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`Time to trial is neutral. LoganTree at *7-8. And, the facts above confirm that NDCA’s
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`local interest far outweighs any in WDTX, Apple I at *3. Even if the Texas individuals were
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`significant (they are not), “[w]here the movant has a ‘significant presence’ in the transferor forum,
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`this factor ‘heavily’ favors transfer where the transferee forum has a ‘significant connection to the
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`event that gave rise to [the] suit.’” LoganTree at *8 (quoting In re Apple Inc., 2021 WL 5291804,
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`at *5 (Fed. Cir. 2021)). The accused functionality was first added to Oculus in NDCA, Oculus
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`moved to NDCA (from Irvine, CA) upon Meta’s acquisition, and this suit involves the work and
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`reputation of NDCA residents (Foxlin and hundreds, if not thousands, of Meta employees). Ex. II
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`at 13-19. “Simply put, the [NDCA] is [Meta’s] home.” Decapolis at 12. Plaintiffs have a California
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`connection, but none to Texas. Ex. MM at 6, 8. NDCA has the clearly greater interest here.
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`Case 6:21-cv-00755-ADA Document 70 Filed 06/10/22 Page 10 of 11
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`Dated: June 3, 2022
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`Respectfully submitted,
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`/s/ Ellisen Shelton Turner
`Jeanne M. Heffernan
`Texas State Bar No. 24128395
`KIRKLAND & ELLIS LLP
`401 Congress Avenue
`Austin, TX 78701
`Tel: (512) 678-9100
`Fax: (512) 678-9101
`jheffernan@kirkland.com
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`Ellisen Shelton Turner (pro hac vice)
`Joshua Glucoft (admitted)
`KIRKLAND & ELLIS LLP
`2049 Century Park East, Suite 3700
`Los Angeles, CA 90067
`Tel: (310) 552-4200
`Fax: (310) 552-5900
`ellisen.turner@kirkland.com
`josh.glucoft@kirkland.com
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`Akshay S. Deoras (pro hac vice)
`KIRKLAND & ELLIS LLP
`555 California Street
`San Francisco, CA 94104
`Tel: (415) 439-1400
`Fax: (415) 439-1500
`akshay.deoras@kirkland.com
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`Paige Arnette Amstutz
`Texas State Bar No. 00796136
`SCOTT, DOUGLASS & MCCONNICO, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`Tel: (512) 495-6300
`Fax: (512) 495-6399
`pamstutz@scottdoug.com
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`Counsel for Defendants Meta Platforms, Inc. and
`Meta Platforms Technologies, LLC
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`Case 6:21-cv-00755-ADA Document 70 Filed 06/10/22 Page 11 of 11
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`CERTIFICATE OF SERVICE
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`Pursuant to the Federal Rules of Civil Procedure, I hereby certify that, on June 10, 2022, all
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`counsel of record who have appeared in this case are being served with a copy of the foregoing via
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`the Court’s CM/ECF system.
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`/s/ Ellisen Shelton Turner
`Ellisen Shelton Turner
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`7
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