Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 1 of 22
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`GENTEX CORPORATION and
`INDIGO TECHNOLOGIES, LLC,
`Plaintiffs,
`
`
`THALES VISIONIX, INC.,
`Involuntary Plaintiff,
`
`-v-
`
`
`
`
`META PLATFORMS, INC. and
`META PLATFORMS
`TECHNOLOGIES, LLC
`Defendants.
`
`
`
`
`
`
`
`Case 6:21-cv-00755-ADA
`
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`SEALED MEMORANDUM OPINION AND ORDER
`
`This opinion memorializes the Court’s decision on Meta Platforms, Inc.’s (“Meta Inc.”)
`
`and Meta Platforms Technologies, LLC (“Meta Technologies”) (collectively, “Defendants”)
`
`Motion to Transfer Venue from the Western District of Texas (“WDTX”) to the Northern District
`
`of California (“NDCA”) under 28 U.S.C. § 1404(a). ECF No. 39. The Court considered
`
`Defendants’ Motion to Transfer to the NDCA (ECF. No. 39), Gentex Corporation and Indigo
`
`Technologies Response in Opposition to Motion (ECF No. 61), and Defendants’ Reply in Support
`
`of Motion to Transfer to the NDCA (ECF No. 66). After careful consideration of the relevant facts
`
`and applicable law, the Court GRANTS Defendants’ Motion to Transfer.
`
`I.
`
`FACTUAL BACKGROUND
`
`Plaintiffs Gentex Corporation (“Gentex”) and Indigo Technologies, LLC (“Indigo”), along
`
`with involuntary plaintiff Thales Visionix, Inc. (“Thales”) (collectively, “Plaintiffs”), filed this suit
`
`on July 22, 2021. The lawsuit alleges infringement of U.S. Patent Nos. 6,757,068 (the “’068
`
`1
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 2 of 22
`
`patent”); 7,301,648 (the “’648 patent”); 8,224,024 (the “’024 patent”); 6,922,632 (the “’632
`
`patent”); and 7,725,253 (the “’253 patent”) (collectively, the “Asserted Patents”).
`
`Generally, the technology in the Asserted Patents relates to tracking systems and map-
`
`building systems. Although not explicit in every claim, the specification makes clear that virtual
`
`reality headsets and controllers can integrate or use the claimed invention. Some dependent claims
`
`include components like “displays” or “user interfaces” of virtual reality headsets. ECF No. 66 at
`
`2. The “Accused Products” in this case include the Oculus Quest, Oculus Rift S, and Oculus Quest
`
`2. ECF No. 1 ¶¶ 43-51. The original Oculus Rift is not an accused product, but it is a technological
`
`predecessor of the Accused Products. Id. ¶ 44. Defendants contend that some parts of the original
`
`Oculus Rift became “standard components” in later products—a fact issue in the obviousness
`
`contentions in this case. ECF No. 66 at 2.
`
`Plaintiff Gentex is a Delaware corporation with its principal place of business in
`
`Carbondale, Pennsylvania. ECF No. 39 at 2. Plaintiff Indigo is a Pennsylvania corporation with a
`
`principal place of business is in Simpson, Pennsylvania. ECF No. 1 at 2. Indigo is wholly owned
`
`by Gentex. Id. Involuntary Plaintiff Thales is a Delaware corporation with its principal place of
`
`business in Maryland. Id.
`
`Defendant Meta Inc. is a Delaware corporation with its principal place of business in Menlo
`
`Park, California. Id. at 2–3. Meta Inc. has two offices in Texas, including one in Austin. ECF No.
`
`61 at 1–2.
`
`Defendant Meta Technologies is a Delaware limited liability corporation with its principal
`
`place of business in Menlo Park, California. Id. at 3. Meta Technologies is a wholly owned
`
`subsidiary of Meta Inc. Id. Meta Technologies acquired Oculus VR, Inc. (“Oculus”) in 2014. ECF
`
`No. 39 at 3. Oculus created foundational virtual reality technology that precedes the Accused
`
`2
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 3 of 22
`
`Products. Oculus was founded in Southern California, but it had an important office in Dallas,
`
`Texas. Id.; ECF No. 61-5. There, the “legendary” John Carmack acted as its Chief Technology
`
`Officer and led the technological development of Oculus’s virtual reality products, including
`
`foundational technology likely carried into the Accused Products. Id.; ECF No. 61 at 3–4; ECF
`
`No. 61-3; ECF No. 61-5 to 61-7. Oculus, John Carmack, and the work in the Dallas office have
`
`high relevance to this case for purposes of establishing the state of previously existing technology
`
`and the valuation of the Asserted Patents. ECF No. 49 at 11. The Dallas office
`
`
`
` ECF No. 61 at 4; ECF No. 61-5 at 3.
`
`II.
`
`LEGAL STANDARD
`
`In patent cases, motions to transfer under 28 U.S.C. § 1404(a) are governed by the law of
`
`the regional circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). Section
`
`1404(a) provides that, “[f]or the convenience of parties and witnesses, in the interest of justice, a
`
`district court may transfer any civil action to any other district or division where it might have been
`
`brought or to any district or division to which all parties have consented.” “Section 1404(a) is
`
`intended to place discretion in the district court to adjudicate motions for transfer according to an
`
`‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v.
`
`Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
`
`The preliminary question under Section 1404(a) is whether a civil action might have been
`
`brought in the transfer destination venue. In re Volkswagen, Inc., 545 F.3d 304, 312 (5th Cir. 2008)
`
`(en banc) (“Volkswagen II”). If the destination venue would have been a proper venue, then “[t]he
`
`determination of ‘convenience’ turns on a number of public and private interest factors, none of
`
`which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358
`
`F.3d 337, 340 (5th Cir. 2004). The private factors include: “(1) the relative ease of access to sources
`
`3
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 4 of 22
`
`of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the
`
`cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a
`
`case easy, expeditious and inexpensive.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)
`
`(“Volkswagen I”) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)). The public
`
`factors include: “(1) the administrative difficulties flowing from court congestion; (2) the local
`
`interest in having localized interests decided at home; (3) the familiarity of the forum with the law
`
`that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws of the
`
`application of foreign law.” Volkswagen I, 371 F.3d at 203.
`
`The burden to prove that a case should be transferred for convenience falls on the moving
`
`party. Volkswagen II, 545 F.3d at 314. The burden that a movant must carry is not that the
`
`alternative venue is more convenient, but that it is clearly more convenient. Id. at 315. Although
`
`the plaintiff’s choice of forum is not a separate factor entitled to special weight, respect for the
`
`plaintiff’s choice of forum is encompassed in the movant’s elevated burden to “clearly
`
`demonstrate” that the proposed transferee forum is “clearly more convenient” than the forum in
`
`which the case was filed. Id. at 314–315. While “clearly more convenient” is not necessarily
`
`equivalent to “clear and convincing,” the moving party “must show materially more than a mere
`
`preponderance of convenience, lest the standard have no real or practical meaning.” Quest NetTech
`
`Corp. v. Apple, Inc., No. 2:19-cv-118, 2019 WL 6344267, at *7 (E.D. Tex. Nov. 27, 2019).
`
`A. Gentex could have brought this suit in the NDCA.
`
`III. ANALYSIS
`
`Under 28 U.S.C. § 1400(b), this Court must make a threshold determination as to whether
`
`this case could have been brought in the destination venue. One location where venue in a patent
`
`lawsuit is proper is where the defendant has committed acts of infringement and maintains a
`
`4
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 5 of 22
`
`regular and established place of business. 28 U.S.C. § 1400(b); TC Heartland LLC v. Kraft Foods
`
`Grp. Brands LLC, 137 S.Ct. 1514, 1516 (2017). Both Meta Inc. and Meta Technologies are
`
`headquartered in the NDCA, and they are accused of infringement in the NDCA as well. ECF No.
`
`39 at 6. Gentex does not dispute that the NDCA would have been a proper venue. ECF No. 61 at
`
`5. This Court finds that venue would have been proper in the NDCA. Thus, the Court proceeds
`
`with its analysis of the private and public interest factors to determine if the NDCA is clearly more
`
`convenient than the WDTX.
`
`B. The private interest factors favor transfer.
`
`The Court finds that three private interest factors favor transfer, and the remaining factor
`
`is neutral. Overall, the private interest factors favor transfer to the NDCA.
`
`a. The relative ease of access to sources of proof favors transfer.
`
`“In considering the relative ease of access to proof, a court looks to where documentary
`
`evidence, such as documents and physical evidence, is stored.” Fintiv Inc. v. Apple Inc., No. 6:18-
`
`cv-00372, 2019 WL 4743678, at *2 (W.D. Tex. Sept. 10, 2019). The question properly focuses on
`
`“relative ease of access, not absolute ease of access.” In re Radmax, 720 F.3d 285, 288 (5th Cir.
`
`2013) (emphases in original). And “[i]n patent infringement cases, the bulk of the relevant
`
`evidence usually comes from the accused infringer. Consequently, the place where the defendant’s
`
`documents are kept weighs in favor of transfer to that location.” In re Apple Inc., 979 F.3d 1332,
`
`1340 (Fed. Cir. 2020).
`
`i. The parties’ arguments
`
`Defendants argue that most of Defendants’ corporate documents relevant to the litigation
`
`were created and are maintained in the NDCA. ECF No. 39-1 ¶¶ 16–17; ECF No. 39 at 7. In
`
`particular, the design, development, financial, and marketing documents related to the Accused
`
`5
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 6 of 22
`
`Features are in the NDCA. ECF No. 39 at 7. Additionally, Defendants contend that the documents
`
`will primarily be collected in Defendants’ Menlo Park office for production. Id. Defendants
`
`identify 57 people located in the NDCA who recently pulled Defendants’ source code in response
`
`to Plaintiffs’ requests during this litigation. ECF No. 66-3. Further, physical inventor notebooks,
`
`which are critical to proving inventorship, are in the custody of Mr. Foxlin in the NDCA. ECF No.
`
`39 at 7–8.
`
`
`
`Plaintiffs argue that the Defendants fail to mention “large swaths” of relevant evidence.
`
`ECF No. 61 at 10. In particular, Plaintiffs contend that Defendants’ venue witness, Mr. Wong,
`
`searched only for evidence related to certain “Accused Features,” and in doing so, does not cover
`
`all topics related to the claims. ECF No. 61 at 10. Further, Plaintiffs argue that Defendants make
`
`no effort to differentiate between documentation maintained in the NDCA from documentation
`
`elsewhere. Id. Defendants also do not mention any documents or physical evidence in particular,
`
`other than the inventor notebook. Id. at 10–11. Additionally, Plaintiffs claim that Defendants
`
`should not be allowed to claim relevant documents which will merely be collected in the NDCA.
`
`ECF No. 61 at 11. Plaintiffs argue that considering the location at which documents are collected
`
`will invite gamesmanship because a party can then shift the location of evidence. Id.
`
`ii. Analysis
`
`In considering the location of documents, the Court credits Mr. Wong’s Declaration that
`
`relevant documents are created and maintained primarily by employees in California, Washington,
`
`Switzerland, and Israel. ECF No. 39-1 (“Wong Decl.”) ¶ 16. Of these, the documents in California
`
`weigh in favor of transfer. The Court agrees with Plaintiffs that Mr. Wong used an ambiguous and
`
`underinclusive definition of “Accused Features.” ECF No. 61 at 10. Mr. Wong only identified the
`
`locations of documents that relate to “certain accused features of the Oculus Rift S, Oculus Quest,
`
`6
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 7 of 22
`
`and Oculus Quest 2 products,” but Mr. Wong never explains which of those “certain accused
`
`features” he refers to. Wong Decl. ¶ 5. However, Plaintiffs offer no follow-up discovery that
`
`reveals the locations of other evidence excluded by Mr. Wong. Plaintiffs leave the Court to guess
`
`at where the rest of this evidence might be. ECF No. 61 at 11. Thus, the Court has no nearby
`
`evidence to weigh against the documents in California identified by Mr. Wong.
`
`Next, the Court considers Defendants’ argument that documents will be collected in Menlo
`
`Park, California. The Court agrees with Plaintiffs that where the documentation will be collected
`
`is not relevant and therefore has no bearing on this factor. This factor looks to “where documentary
`
`evidence, such as documents and physical evidence, is stored” presently, not where it will be
`
`collected in the future. Fintiv, 2019 WL 4743678, at *2. Looking to the location of future document
`
`collection invites gamesmanship and venue manipulation.
`
`Finally, this Court looks to which venue offers easier access to source code. Access is
`
`easiest at the location of “document custodians” and “where documents are created and
`
`maintained, which may bear on the ease of retrieval.” In re Google LLC, No. 2021-178, 2021 WL
`
`5292267, at *2 (Fed. Cir. Nov. 15, 2021). In this case, the list of 57 custodians who pulled the
`
`source code in the NDCA shows that custodians can easily access source code in the NDCA. ECF
`
`No. 66-3. There is no evidence showing that source code has been or can be accessed from the
`
`WDTX. This weighs in favor of transfer.
`
`Further, the Court finds that the inventor’s notebook is relevant physical evidence, and its
`
`location in California weighs in favor of transfer.
`
`As a result, the relevant physical evidence, electronic documents, and source code are more
`
`easily retrieved from the NDCA than from the WDTX. Thus, this factor weighs in favor of transfer.
`
`7
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 8 of 22
`
`b. The compulsory process factor favors transfer.
`
`The Federal Rules permit a court to subpoena a witness to attend trial only (a) “within 100
`
`miles of where the person resides, is employed, or regularly transacts business in person” or (b)
`
`“within the state where the person resides, is employed, or regularly transacts business in person,
`
`if the person . . . is commanded to attend a trial and would not incur substantial expense.” Fed. R.
`
`Civ. P. 45(c)(1)(A), (B)(ii); Gemalto S.A. v. CPI Card Grp. Inc., No. 15-CA-0910, 2015 WL
`
`10818740, at *4 (W.D. Tex. Dec. 16, 2015). Under this factor, the Court focuses on non-party
`
`witnesses whose attendance may need to be secured by a court order. Fintiv, 2019 WL 4743678 at
`
`*14 (citing Volkswagen II, 545 F.3d at 316). And “when there is no indication that the witness is
`
`willing,” the Court must presume that its subpoena power will be necessary to secure the witness’s
`
`attendance. In re DISH Network LLC, No. 2021-182, 2021 WL 4911981, at *3 (Fed. Cir. Oct. 21,
`
`2021) (quoting In re HP, Inc., No. 2018-149, 2018 WL 4692486, at *3 n.1 (Fed. Cir. Sept. 25,
`
`2018)). This factor “weigh[s] heavily in favor of transfer when more third-party witnesses reside
`
`within the transferee venue than reside in the transferor venue.” In re Apple, 581 F. App’x 886,
`
`889 (Fed. Cir. 2014).
`
`i. Inventor
`
`The parties dispute the effect of Eric Foxlin, an inventor on all the Asserted Patents, on the
`
`transfer analysis. Eric Foxlin resides in NDCA. ECF No. 39-2. However, Mr. Foxlin has signed a
`
`declaration stating that “[w]ere this case to proceed to trial and my testimony requested, I would
`
`be willing to travel voluntarily to the Western District of Texas to testify in this matter.” ECF No.
`
`61-25 ¶ 3. Thus, the Court does not analyze Mr. Foxlin under the compulsory process factor. He
`
`will be analyzed under the willing witness factor.
`
`8
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 9 of 22
`
`ii. Non-party witnesses identified by Defendants
`
`To support transfer, Defendants identify five prior art authors and two prior art developers
`
`in the NDCA who are relevant to Defendants’ patent invalidity claims. ECF No. 39 at 4.
`
`Defendants list Mike A. Horton, Michael A. Teitel, and Vaibhav Vaish as inventors of prior art
`
`patents. Id. Defendants establish the relevance of the prior art to the Asserted Patents by providing
`
`invalidity contention charts. ECF No. 40-31. Defendants also list Michael Zyda and Bill Cockayne
`
`as authors of relevant non-patent prior art and similarly establish the relevance of their prior art
`
`through invalidity contention charts. Id.; ECF No. 39 at 4. All five prior art witnesses are located
`
`in the NDCA. ECF No. 39 at 4. In addition, Darren Liccardo and Mitch Altman are engineers at
`
`companies that developed relevant prior art products. ECF No. 39 at 5; ECF No. 40-26; ECF No.
`
`40-28. Both Darren Liccardo and Mitch Altman reside in the NDCA. ECF No. 39 at 5; ECF No.
`
`40-26; ECF No. 40-28. Since these seven total prior art witnesses have provided no indication of
`
`their willingness to attend trial, the NDCA’s subpoena power will be necessary to secure their
`
`testimony.
`
`Further, in response to Plaintiffs’ argument that Oculus has relevance to this case,
`
`Defendants performed a “reasonable investigation” that yielded
`
`
`
`
`
`
`
`
`
` ECF No. 66-14 at 13. Some of these 131 people are likely located in the
`
`NDCA. Id. at Appendix 1.
`
`9
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 10 of 22
`
`Defendants also argue that the Naval Postgraduate School in California may have relevant
`
`prior art prototypes. ECF No. 39 at 4–5. However, under this factor, Defendants must identify a
`
`person or representative for testifying at trial, not a school or prototype for consideration.
`
`iii. Non-party witnesses identified by Plaintiffs
`
`Plaintiff identifies Katherine Anna Kang, who was involved in the negotiation of Meta
`
`Technologies’ acquisition of Oculus, as a witness who can only be compelled by this Court’s
`
`subpoena power. ECF No. 61 at 11–12; ECF No. 61-11 at 348–49.
`
`Plaintiffs then argue that if the Court counts prior art witnesses, it should weigh those in
`
`California against those in Texas. For example, one prior art witness is Frank Brick, former
`
`President of Telxon Corporation, which sold an alleged prior art system and now resides in Texas.
`
`ECF No. 61 at 12; ECF No. 61-21; ECF No. 61-26. However, Plaintiffs stop before identifying
`
`the other prior art witnesses who reside within this Court’s subpoena power for the Court to
`
`consider. ECF No. 61 at 12.
`
`iv. Analysis
`
`In conclusion, this factor weighs in favor of transfer. Defendants cite seven prior art
`
`witnesses in the NDCA who may provide testimony about prior art, and they outweigh the one
`
`prior art witness in Texas identified by Plaintiffs. Defendants convincingly established the
`
`relevance of the prior art using invalidity contention charts. Plaintiffs ask this Court to discount
`
`the weight of the prior art witnesses. ECF No. 61 at 12. The Court does not categorically disregard
`
`prior art witnesses but notes that not all prior art witnesses will likely testify at trial. In re Hulu,
`
`LLC, 2021 WL 3278194, at *3 (Fed. Cir. Aug. 2, 2021). Thus, the Court gives reduced weight to
`
`the six extra prior art witnesses in California. One or two of them are likely to attend trial.
`
`10
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 11 of 22
`
`The Court heavily discounts the
`
` by Defendants
`
`due to the weak supporting declaration. ECF No. 66-14 at 13. Defendants only represent that
`
`
`
`
`
`. Id. Despite performing a “reasonable investigation,”
`
`Defendants make “no representation regarding the accuracy of any location information provided.”
`
`Id. The Court finds that only a small fraction of these individuals likely had direct involvement in
`
`, and now resides within
`
`the subpoena power of the NDCA.
`
`Even if only a few of the six extra prior art witnesses attend trial in California and only a
`
`small fraction of the 131 individuals in California have direct knowledge of the Oculus acquisition
`
`and diligence, there will still be more third-party witnesses who can be compelled to attend trial
`
`only in California. They collectively outweigh Katherine Kang, who can be compelled to attend
`
`trial only in Texas. This factor weighs in favor of transfer.
`
`c. The cost of attendance and convenience for willing witnesses favors transfer.
`
`The most important factor in the transfer analysis is witness convenience. In re Genentech,
`
`Inc., 566 F.3d 1338, 1342 (Fed. Cir. 2009). When analyzing this factor, the Court should consider
`
`all potential materials and relevant witnesses. Alacritech Inc. v. CenturyLink, Inc., No. 2:16-cv-
`
`00693, 2017 WL 4155236, at *5 (E.D. Tex. Sept. 19, 2017). This factor appropriately considers
`
`the cost of attendance of all willing witnesses, including both party and non-party witnesses. In re
`
`Pandora Media, LLC, No. 2021-172, 2021 WL 4772805, at *2–3 (Fed. Cir. Oct. 13, 2021). “Courts
`
`properly give more weight to the convenience of non-party witnesses than to party witnesses.”
`
`Netlist, Inc. v. SK Hynix Inc., No. 6:20-cv-00194, 2021 WL 2954095, at *6 (W.D. Tex. Feb. 2,
`
`2021).
`
`11
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 12 of 22
`
`“When the distance between an existing venue for trial of a matter and a proposed venue
`
`under § 1404(a) is more than 100 miles, the factor or inconvenience to witnesses increases in direct
`
`relationship to the additional distance to be travelled.” Volkswagen II, 545 F.3d at 317 (quoting
`
`Volkswagen I, 371 F.3d at 203). But the Federal Circuit has clarified that courts should not
`
`“rigidly” apply the 100-mile rule in cases where witnesses would be required to travel a significant
`
`distance no matter where they testify. In re Apple, 979 F.3d at 1342 (discussing witnesses traveling
`
`from New York).
`
`Rather, “the inquiry should focus on the cost and inconvenience imposed on the witnesses
`
`by requiring them to travel to a distant forum and to be away from their homes and work for an
`
`extended period of time.” In re Google, LLC, No. 2021-170, 2021 WL 4427899, at *4 (Fed. Cir.
`
`Sept. 27, 2021). The Federal Circuit has indicated that time away from an individual’s home is a
`
`more important metric than distance. Id. Time and distance frequently and naturally overlap
`
`because witnesses usually take more time to travel farther away, thereby increasing the time away
`
`from home. A witness in Florida would not find it more convenient to travel to Texas than to
`
`California despite Texas being halfway between Florida and California. In re Apple Inc., No. 2022-
`
`128, 2022 WL 1196768, at *3 (Fed. Cir. Apr. 22, 2022).
`
`i.
`
` Witnesses favoring transfer
`
`Defendants’ opening brief argues that the engineers, finance employees, and marketing
`
`employees with relevant knowledge are in the NDCA and will find trial there more convenient.
`
`ECF No. 39 at 3, 9–10. Defendants support their argument with the Wong Declaration. Id. Mr.
`
`Wong identifies Defendants’ teams who have knowledge relevant to this case. Id. Then,
`
`Defendants provide detailed interrogatory responses that list the name, location, team, and title of
`
`every member of the teams identified by Mr. Wong and relied upon in Defendants’ opening brief.
`
`12
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 13 of 22
`
`ECF No. 66-7 at 23–44; ECF No. 66-18 at 9–43. Defendants’ interrogatory responses identify the
`
`relevant team members in California, and the interrogatory responses further provide the same
`
`information for team members in Texas, in other states, and in foreign countries. ECF No. 66-7 at
`
`23–44; ECF No. 66-18 at 9–43. The Court finds this evidence reliable because it appears thorough.
`
`See Scramoge Tech. Ltd. v. Apple Inc., No. 6:21-cv-00579, 2022 WL 1667561, at *4 n.3 (W.D.
`
`Tex. May 25, 2022) (discounting the credibility of Apple for avoiding its obligation to identify the
`
`locations of its servers in response to an interrogatory). Ultimately, Defendants argue that 96
`
`employees in NDCA will find trial there more convenient. ECF No. 66 at 3.
`
`Michael Southard is the Director overseeing the
`
`. Wong
`
`Decl. ¶ 9. Mr. Southard and his team likely have relevant technical knowledge regarding the
`
`Accused Products. Id. Mr. Southard resides in California, as does the majority of his team, and
`
`nobody on his team resides in Texas or in states near Texas. Id.; ECF No. 66-7 at 27–30. Cina
`
`Hazegh is the
`
`
`
`. Wong Decl. ¶ 12. Mr. Hazegh and his team likely have relevant technical
`
`knowledge regarding the Accused Products. Id. Mr. Hazegh is based in northern California, as is
`
`, and nobody on his team resides in Texas or in states near Texas.
`
`Id.; ECF No. 66-7 at 30. Fede Camposeco is a
`
`
`
`. Wong Decl. ¶ 13. Mr. Camposeco and his team likely have relevant technical knowledge
`
`regarding the Accused Products. Id. Mr. Camposeco is based in northern California, as is most of
`
`his team, and nobody on his team resides in Texas. Id. One member of Mr. Camposeco’s team,
`
` and will find travel to the WDTX more convenient.
`
`ECF No. 66-7 at 32. Patrick Chen is the
`
`
`
`
`
`13
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 14 of 22
`
`. Wong Decl. ¶ 14. Mr. Chen and his team likely have relevant knowledge regarding
`
` of accused features of the Accused Products. Id. Mr. Chen and his team are
`
`primarily based in northern California and Washington, and nobody on his team resides in Texas
`
`or in states near Texas. Id.; ECF No. 66-7 at 37–38. Alisa Leung is the Finance Director for Reality
`
`Labs, which supports Oculus products. Wong Decl. ¶ 15. Ms. Leung’s team oversees
`
`
`
`. Id. Ms. Leung and her team likely have relevant
`
`financial knowledge regarding the damages in this case. Id. Ms. Leung and the majority of her
`
`team are based in northern California, and nobody on Ms. Leung’s team resides in Texas or in
`
`states near Texas. Id.; ECF No. 66-7 at 38–41. The Court finds the evidence supports at least 96
`
`relevant employees who live in or near the NDCA, not counting Mr. Wong.
`
`Eric Foxlin is the named inventor on all Asserted Patents and is located in San Mateo
`
`County, California. ECF No. 39 at 1. Mr. Foxlin signed a declaration stating that he is willing to
`
`travel to WDTX. ECF No. 61-25 ¶ 3. He will find travel to the NDCA more convenient.
`
`Defendants also identify two employees who likely have relevant knowledge and reside in
`
`Washington State. These identified individuals can drive or take a short flight to the courthouses
`
`in the NDCA, testify for several hours, and return home within the same day. Nick Everist is a
`
`Product Management Lead on the
`
`. Wong Decl. ¶ 7. Mr. Everist is based in
`
`Washington State, and
`
` is based almost entirely in California and
`
`Washington State. Id. Mr. Everist and his team likely have relevant knowledge on the design and
`
`development of relevant instrumentalities of the Accused Products. Id. Andrew Melim is a
`
`Software Engineering Manager that works on
`
`. Wong Decl.
`
`¶ 8. Mr. Melim resides in Washington State. Id. He and his team likely have relevant knowledge
`
`regarding the design and development of relevant instrumentalities of the Accused Products. Id.
`
`14
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 15 of 22
`
`Further, Defendants identify Luc Oth who is a Software Engineering Manager that also
`
`works on the
`
`. Luc Oth resides in Switzerland. Wong Decl. ¶ 8.
`
`The Court finds this factor neutral with respect to Mr. Oth because travel for him to either district
`
`would be equally inconvenient.
`
`Altogether, Defendants have identified at least 99 relevant witnesses who will find the
`
`NDCA more convenient.
`
`ii. Witnesses weighing against transfer
`
`Plaintiffs argue that six party witnesses reside in the WDTX and will find trial here more
`
`convenient. ECF No. 61 at 9–10. These include Jonathan Wright, John Carmack, Matt Hooper,
`
`Cass Everitt, Andrew Welsch, and Jonathan Atkins. Id. at 6.
`
`Jonathan Wright was an early Oculus employee, served as the Engineering Manager of the
`
`, and is now a
`
`
`
`. Wong Decl. ¶ 10. Mr. Wright resides
`
` and likely has relevant
`
`knowledge regarding the design and development of foundational technology that precedes and
`
`may be carried into the Accused Products, which goes to the state of the art and the apportioned
`
`value of patented features, as well as accused tracking technology. Id.; ECF No. 61-13; ECF No.
`
`61-9 (“Implemented 6DoF tracking service”). One other employee,
`
`, works on Mr.
`
`Wright’s team in Texas. ECF No. 66-7 at 35.
`
`John Carmack was the Chief Technology Officer for Oculus and currently serves as a
`
`consultant for Defendants. ECF No. 61-3. Mr. Carmack lives in Dallas and has relevant knowledge
`
`regarding the conception, design, and development of the Accused Products. Id.; ECF No. 61-4.
`
`He also likely has knowledge related to valuation of the technology in the Asserted Patents because
`
`he was paid for this work and pitched virtual reality technology to Facebook CEO Mark
`
`15
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 16 of 22
`
`Zuckerberg. ECF No. 61-11 at 344–46. Given his history in developing foundational virtual reality
`
`technology and celebrity-like status in the virtual reality community, he will be an exceptionally
`
`important witness in this case.
`
`Matt Hooper was Oculus’s Director of Development and is currently a Product Manager
`
`for Meta Technologies. ECF No. 61-10. Mr. Hooper
`
` and likely has relevant
`
`knowledge regarding the design and development of the Accused Products or the technology
`
`preceding the accused products and the valuation of the technology in the Asserted Patents. ECF
`
`No. 61 at 6; ECF No. 61-10.
`
`Cass Everitt was an engineer at Oculus and is currently employed by Meta Technologies.
`
`ECF No. 61-15. Cass Everitt likely has relevant knowledge regarding the design and development
`
`of the Accused Products. Id. However, Mr. Everitt
`
`, not Dallas. ECF No. 66-1 ¶ 5.
`
`He will not find either forum more convenient than the other.
`
`Andrew Welch was a Senior Software Engineer at Oculus and is currently employed by
`
`Meta Technologies. ECF No. 61 at 6; ECF No. 61-16. Mr. Welch
`
` and
`
`likely has relevant knowledge regarding the hand tracking tech demos used with the Oculus Quest.
`
`ECF No. 61 at 6; ECF No. 61-16; ECF No. 61-32.
`
`Jonathan Atkins is currently the Director and Head of Design at Meta Technologies. ECF
`
`No. 61-17. Mr. Atkins
`
` and likely has relevant knowledge regarding
`
`the design and development of technology related to the Accused Products. ECF No. 61 at 6.
`
`Defendants argue that these witnesses identified by Plaintiffs did not perform relevant work
`
`because they “are not responsible for the design or development of any of that code used in the
`
`Oculus products” accused in this case. ECF No. 66 at 4; ECF No. 66-1 at 1. However, even if they
`
`16
`
`

`

`Case 6:21-cv-00755-ADA Document 78 Filed 07/08/22 Page 17 of 22
`
`did not work on the code for those products, they still have knowledge relevant to the development
`
`of prior art in the virtual reality headset space and/or knowledge of the valuation of Oculus.
`
`Altogether, Plaintiffs have identified six relevant witnesses who will find travel to the
`
`WDTX more convenient, and John Carmack is an exceptionally important witness. Additionally,
`
` and will find travel to the WDTX more convenient.
`
`ECF No. 66-7 at 32.
`
`Defendants argue that Plaintiffs’ witnesses are not relevant to inventive features in the
`
`Asserted Patents. ECF No. 66 at 3-4. However, the Court finds that the people identified by
`
`Plaintiffs will have knowledge of the history and development foundational technology used in
`
`the accused products. Their knowledge relates to the state of prior art, the value of unpatented
`
`features in damage apportionment, the timeline of when certain technology developed, and which
`
`technologies did or did not carry into the Accused Products.
`
`iii. Analysis
`
`Defendants’ 99 relevant witnesses who find the NDCA more convenient far outnumber the
`
`six witnesses who will find the WDTX more convenient. The Court recognizes John Carmack’s
`
`importance, but even his convenience cannot outweigh so many othe