Case 6:21-cv-00916-ADA Document 108 Filed 10/14/22 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`RFCyber CORP.,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
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`Civil Action No. 6:21-cv-00916-ADA
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`JURY TRIAL DEMANDED
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`APPLE’S REPLY IN SUPPORT OF MOTION FOR INTRA-DISTRICT TRANSFER
`TO THE AUSTIN DIVISION PURSUANT TO 28 U.S.C. § 1404(a)
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`Case 6:21-cv-00916-ADA Document 108 Filed 10/14/22 Page 2 of 10
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`INTRODUCTION ...............................................................................................................1
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`AUSTIN IS CLEARLY MORE CONVENIENT THAN WACO FOR THIS CASE.
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`A.
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`B.
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`C.
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`RFCyber Is Not “At Home” In The Waco Division. ...............................................1
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`The Private Interest Factors Favor Transfer To The Austin Division. ....................2
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`The Public Interest Factors Favor Transfer To The Austin Division. .....................3
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`III.
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`RFCYBER WRONGLY FOCUSES ON APPLE’S WITHDRAWN INTER-
`DISTRICT TRANSFER MOTION. ....................................................................................4
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`A.
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`B.
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`RFCyber’s “Unclean Hands” Argument Is Meritless. .............................................4
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`This Motion Is Timely, And RFCyber Suffered No Unfair Prejudice. ...................5
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`Case 6:21-cv-00916-ADA Document 108 Filed 10/14/22 Page 3 of 10
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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.,
`979 F.3d 1332 (Fed. Cir. 2020)..............................................................................................2, 4
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`Fairfield Industries Inc. v. Weireless Seismic, Inc.,
`No. 13-cv-903-JRG, 2014 WL 4829071 (E.D. Tex. Sept. 26, 2014) ........................................4
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`Freshub, Inc. v. Amazon.com Inc.,
`No. 19-cv-388-ADA, 2019 WL 10856832 (W.D. Tex. Sept. 9, 2019) .................................3, 4
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`Identity Security LLC v. Apple, Inc.,
`No. 22-cv-00058, Dkt. No. 59 (W.D. Tex. Jan. 25, 2022) ........................................................4
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`Jawbone Innovations, LLC v. Samsung Elecs. Co.,
`No. 2:21-CV-00186-JRG-RSP, 2022 WL 4004195 (E.D. Tex. Aug. 31, 2022) .......................5
`
`In re Juniper Networks, Inc.,
`14 F.4th 1313 (Fed. Cir. 2021) ..................................................................................................2
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`Peteet v. Dow Chem. Co.,
`868 F.2d 1428 (5th Cir. 1989) ...................................................................................................5
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`Word to Info, Inc. v. Facebook, Inc.,
`No. 3:14-cv-43870-K, 2015 WL 13870507 (N.D. Tex. July 23, 2015) ....................................4
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`In re Wyeth,
`406 F. App'x 475 (Fed. Cir. 2010) .............................................................................................5
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`Case 6:21-cv-00916-ADA Document 108 Filed 10/14/22 Page 4 of 10
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`I.
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`INTRODUCTION
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`RFCyber’s opposition makes clear that transfer to Austin is warranted. First, RFCyber’s
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`response confirms there is no connection between Apple and Waco. On the contrary, the
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`relevant Apple witnesses, activities, and documents are located in Austin or Cupertino. Second,
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`RFCyber confirms that its connections to Waco are ephemeral. There are no party witnesses
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`who reside in Waco, and RFCyber identifies only an irrelevant third-party who, as of two months
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`ago, was not even aware of this lawsuit. RFCyber relies on self-serving and irrelevant
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`statements from its purported witnesses—including declarants based in China and Taiwan—
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`claiming it would be “convenient” for them to travel to Waco.
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`The Court also should reject RFCyber’s collateral attacks on the timeliness and propriety
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`of Apple’s motion. RFCyber cites no Court rule or case law that makes Apple’s motion
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`untimely or improper, because there is none. To the contrary, when RFCyber expanded the
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`scope of its infringement contentions such that certain witnesses in Austin became relevant,
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`Apple diligently withdrew its motion for inter-district transfer and filed this motion instead.
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`In sum, there are no ties between Apple and Waco and RFCyber’s ties to Waco are
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`ephemeral and manufactured; Austin is clearly a more convenient venue than the Waco Division.
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`II.
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`AUSTIN IS CLEARLY MORE CONVENIENT THAN WACO FOR THIS CASE.
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`A.
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`RFCyber Is Not “At Home” In The Waco Division.
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`RFCyber’s presence in Waco is ephemeral, which is confirmed by its history of trying to
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`manufacture venue.
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`RFCyber followed the same playbook in Waco,
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`1
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`. Ex. L, Pan Tr. at 37:10-17.
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`. Ex. M.
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` before filing this
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`lawsuit in September. Ex. L, Pan Tr. at 32:17-22, 35:24-37:1; Ex. I (Clark Rough Tr.) at 4:14-
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`21, 6:25-7:2, 8:25-11:20.
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` less than two months before
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`RFCyber filed this lawsuit. RFCyber Ex. 7. This is precisely the sort of “recent and ephemeral
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`presence” that the Federal Circuit gives no weight in the transfer analysis. In re Juniper
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`Networks, Inc., 14 F.4th 1313, 1320 (Fed. Cir. 2021) (“[L]ittle or no weight should be accorded
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`to a party’s ‘recent and ephemeral’ presence in the transferor forum, such as by establishing an
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`office in order to claim a presence in the district for purposes of litigation.”).
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`Moreover, the RFCyber technology being researched in Texas has nothing to do with the
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`asserted patents, as confirmed by RFCyber’s CEO and inventor. As he conceded, “
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` See Ex. L, Pan Tr. at 92:19-94:18. The Court therefore
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`should ignore RFCyber’s purported connections to Waco.
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`B.
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`The Private Interest Factors Favor Transfer To The Austin Division.
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`RFCyber’s opposition confirms that the overwhelming majority of Apple sources of
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`proof are located in California or Austin and, after extensive venue discovery, RFCyber has not
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`identified any Apple sources of proof in the Waco Division. See Opp. at 11-12; Mot. at 10-11.
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`RFCyber instead focuses on its own alleged sources of proof, despite that “the place where the
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`defendant’s documents are kept weighs in favor of transfer to that location.” In re Apple Inc.,
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`979 F.3d 1332, 1340 (Fed. Cir. 2020). Regardless, RFCyber’s research arrangements with
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`Baylor University and its purported design and development work cannot be sources of proof
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`because none of that work has anything to do with the asserted patents.
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`For its part, Apple identified multiple witnesses in California and Austin, whereas
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`RFCyber identified one potential witness in Waco and one in Leander, which is an hour closer to
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`Austin than Waco. Ex. N.1 All other witnesses identified by RFCyber are located in California,
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`Taiwan, or China. See Freshub, Inc. v. Amazon.com Inc., No. 19-cv-388-ADA, 2019 WL
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`10856832, at *1 (W.D. Tex. Sept. 9, 2019) (“Of greatest import to the Court is that no
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`anticipated … witnesses reside in the Waco Division.”). RFCyber relies on Dr. Hu, an RFCyber
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`sponsored researcher at Baylor who is working on
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`, to argue that her knowledge is “relevant to damages” and that Waco is more
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`convenient, but she is of marginal (if any) relevance and RFCyber did not submit any declaration
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`or other support that she plans to testify at trial. Opp. at 13-14.
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` Ex. L, Pan
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`Tr. at 90:13-22. The Court should discount her connection to this case because her purported
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`testimony is—at best—cumulative of what RFCyber’s damages expert is anticipated to present.
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`RFCyber claims that Waco is more convenient than Austin for its California-based
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`witnesses (Dr. Koh, Mr. Cho, and Mr. Cho) and, incredibly, for its witnesses in Taiwan (Dr. Pan)
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`and China (Mr. Xie). But the relevant inquiry is the cost of attendance for willing witnesses, not
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`a witness’s claim that Waco is more “convenient.” Notably, no declarant says under oath that it
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`is faster to travel to Waco than Austin from their residence (it is not), nor that he would be
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`unwilling to travel to Austin. The only justification is the “convenience” of using RFCyber’s
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`single-room office. But RFCyber fails to explain how seven individuals (assuming they all came
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`to trial) could effectively use an office that consists of single room and a single desk.
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`C.
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`The Public Interest Factors Favor Transfer To The Austin Division.
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`Because this is a motion for intra-district transfer, the relevant question is whether Austin
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`1 RFCyber complains that Apple did not provide its witnesses’ personal addresses, which is
`private information, but ignores that each witness confirmed under oath that they live and work
`in Travis County. And RFCyber hypocritically claims it would be inconvenient for its witnesses
`to travel to Austin while not inconvenient for Apple’s witnesses to travel to Waco. Opp. at 3-5.
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`has more of a local interest than Waco. See Freshub, 2019 WL 10856832, at *1-2. Apple has a
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`presence in Austin but no presence in Waco. Any local interest the Waco Division may have in
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`resolving this matter is overshadowed by the local interest of the Austin Division. See Identity
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`Security LLC v. Apple, Inc., No. 22-cv-00058, Dkt. No. 59 at *13-14 (W.D. Tex. Jan. 25, 2022)
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`(“[T]he local interest in Austin is likely stronger because the physical offices are in that division,
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`and the employees reside closer to the Austin courthouse than the Waco courthouse.”).
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`As demonstrated above, the Court should discount RFCyber’s litigation-focused attempts
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`to establish roots in Waco shortly before filing this suit. Its only colorable connection to Waco is
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`its arrangement with Baylor University. But none of the purported research relates to the
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`asserted patents or technology at issue. “A local interest is demonstrated by a relevant factual
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`connection between the events and the venue.” Word to Info, Inc. v. Facebook, Inc., No. 3:14-
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`cv-43870-K, 2015 WL 13870507, at *4 (N.D. Tex. July 23, 2015). Waco “has no relation to the
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`litigation.” Fairfield Industries Inc. v. Weireless Seismic, Inc., No. 13-cv-903-JRG, 2014 WL
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`4829071, at *4 (E.D. Tex. Sept. 26, 2014). RFCyber argues without support that the Waco
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`Division is less congested than the Austin Division, but that is not the case. See Ex. K. In the
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`only case RFCyber cites, Wsou Investments LLC v. Microsoft Corp., the Court denied intra-
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`district transfer because the motion was filed within three months of the scheduled trial date, not
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`because of court congestion. And RFCyber’s reliance on the case schedule in this case is
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`misplaced, as a court “cannot merely set an aggressive trial date and subsequently conclude
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`[court congestion], on that basis alone.” In re Apple, 979 F.3d 1332, 1344 (Fed. Cir. 2020).
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`III.
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`RFCYBER WRONGLY FOCUSES ON APPLE’S WITHDRAWN INTER-
`DISTRICT TRANSFER MOTION.
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`A.
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`RFCyber’s “Unclean Hands” Argument Is Meritless.
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`RFCyber devotes much of its opposition to responding to Apple’s now-withdrawn
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`motion for inter-district transfer. See Opp. at 6-9. These arguments are irrelevant because the
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`central issue now is whether Austin is clearly more convenient than Waco. Apple acknowledged
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`from the start that it has Austin-based employees working on certain aspects of Apple Pay, Apple
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`Wallet, and Apple Cash. See ECF No. 41 at 10-11; Mot. at 3-5, 10-12. Once it became clear
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`that RFCyber had (impermissibly) broadened the scope of its infringement contentions such that
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`certain Austin employees were arguably relevant, Apple timely filed this motion.
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`B.
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`This Motion Is Timely, And RFCyber Suffered No Unfair Prejudice.
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`RFCyber does not cite any Court rule or precedent that renders this motion untimely.
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`When Apple filed this motion in August 2022, the operative standing order set only a deadline
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`for inter-district transfer. While the Court’s September 2022 Standing Order includes a deadline
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`for intra-district transfer, it issued after Apple filed this motion and does not apply to this case,
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`which was filed before March 7, 2022. The three cases RFCyber cites all involve inter-district
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`transfer motions where the movant delayed for at least a year. See In re Wyeth, 406 F. App’x
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`475, 476 (Fed. Cir. 2010); Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989);
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`Jawbone Innovations, LLC v. Samsung Elecs. Co., No. 2:21-CV-00186-JRG-RSP, 2022 WL
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`4004195, at *1 (E.D. Tex. Aug. 31, 2022). Here, Apple timely sought transfer to California
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`based on its understanding of the scope of infringement in April 2022. See ECF No. 41. After
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`RFCyber broadened its contentions and then refused to stipulate to transfer to Austin, Apple
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`promptly withdrew its inter-district transfer motion and filed this motion. RFCyber also was not
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`unfairly prejudiced by this turn of events as it did not increase the volume of venue discovery.
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`Indeed, after this motion was filed, the only additional venue discovery RFCyber conducted was
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`serving a single interrogatory requesting information it already had from the earlier venue
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`discovery.
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`Case 6:21-cv-00916-ADA Document 108 Filed 10/14/22 Page 9 of 10
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`Dated: October 7, 2022
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`Respectfully submitted,
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`/s/ John M. Guaragna
`John M. Guaragna (Bar No. 24043308)
`Zachary Loney (Bar No. 24092714)
`DLA PIPER LLP (US)
`401 Congress Avenue, Suite 2500
`Austin, TX 78701
`Telephone: (512) 457-7000
`Facsimile: (512) 457-7001
`john.guaragna@us.dlapiper.com
`zachary.loney@us.dlapiper.com
`
`Sean C. Cunningham (pro hac vice)
`Erin P. Gibson (pro hac vice)
`Peter Maggiore (pro hac vice)
`DLA PIPER LLP (US)
`401 B Street, Suite 1700
`San Diego, CA 92101
`Telephone: (619) 699-2700
`Facsimile: (619) 699-2701
`sean.cunningham@us.dlapiper.com
`erin.gibson@us.dlapiper.com
`peter.maggiore@us.dlapiper.com
`
`Stephanie Lim (pro hac vice)
`DLA PIPER LLP (US)
`444 West Lake Street, Suite 900
`Chicago, IL 60606
`Telephone: (312) 368-4000
`Facsimile: (312) 630-7408
`stephanie.lim@us.dlapiper.com
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`Attorneys for Defendant Apple Inc.
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`Case 6:21-cv-00916-ADA Document 108 Filed 10/14/22 Page 10 of 10
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record who are deemed to have consented to electronic
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`service are being served on October 7, 2022 with a copy of this document via electronic mail.
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`/s/ John M. Guaragna
`John M. Guaragna
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