Case 6:21-cv-00916-ADA Document 149 Filed 06/14/23 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`RFCYBER CORP.,
`Plaintiff
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`-vs-
`APPLE INC.,
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`Defendant.
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`6-21-CV-00916-ADA
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`PUBLIC VERSION
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`ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER
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`Came on for consideration this date is Defendant Apple Inc.’s (“Apple”) Motion for an
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`intra-district transfer of venue to the Austin Division of the Western District of Texas. ECF No.
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`93 (the “Motion”). Plaintiff RFCyber Corp. (“RFCyber”) filed an opposition to the Motion on
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`October 24, 2022 (ECF No. 49), to which Apple replied on September 23, 2022. ECF No. 102.
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`After careful consideration of the briefs and applicable law, Apple’s Motion is GRANTED.
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`I.
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`FACTUAL BACKGROUND
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`RFCyber brought this suit against Apple on September 7, 2022, alleging infringement of
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`U.S. Patent Nos. 8,118,218, 9,189,787, 9,240,009, 10,600,046, and 11,018,724 (the “Patents-in-
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`Suit”). ECF No. 1 ¶¶ 7–12. The Patents-in-Suit allegedly are directed to “apparatus and methods
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`for enabling secure contactless payment with a portable device.” Id. ¶ 13.
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`RFCyber then filed an amended complaint on December 2, 2021, adding a sixth patent.
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`ECF No. 18. RFCyber asserts that Apple’s products that include Apple Pay, Apple Wallet, or
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`Apple Cash (iPhones, iPads, Watches, and Macs) infringe the asserted patents because, under
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`RFCyber’s theory, these features enable secure contactless payment with a mobile device,
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`including emulating a payment card and completing a transaction, typically via near-field
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`communication (“NFC”). See id. ¶ 14; see also id. ¶ 15 (“Apple has distributed variants of Apple
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`Pay that have included functionality to emulate a payment card and settle a transaction via NFC
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`and/or MSJ at least since October 2014.”). On December 21, 2021, RFCyber served its
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`infringement contentions, which did not make any reference to non-payment aspects of
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`. ECF Nos. 94-1–94-6.
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`On April 18, 2022, and based on Apple’s investigation and understanding that the payment
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`related aspects of Apple Pay, Apple Wallet, and Apple Cash were
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`, Apple moved to transfer this case to the
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`Northern District of California. See ECF No. 41. During a June 13, 2022, discovery dispute hearing
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`related to Apple’s transfer motion, RFCyber allegedly claimed for the first time that non-payment
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`aspects of Apple Pay, Apple Wallet, Apple Cash, Passkit, and related hardware and software, such
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`as driver’s license functionality, were within the scope of its infringement contentions. See ECF
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`No. 93-1, June 13, 2022 Hrg. Tr. at 12:21
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` Apple asserts that it disagrees that
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`RFCyber’s claims or RFCyber’s infringement contentions are broad enough to cover non-payment
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`features and argued the same at the hearing. See id. at 17:6–11. But based on RFCyber’s
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`representations about the broad scope of its contentions, the Court ordered venue discovery into
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`the non-payment aspects of the accused products. Id. at 18:15–25. As a result, on June 16, 2022,
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`Apple notified RFCyber that, given RFCyber’s new position about the purported scope of its
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`contentions that for the first time made certain employees in Austin relevant, Apple was willing to
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`litigate this case in the Austin Division. ECF No. 93-2 (email chain). RFCyber responded on June
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`22, 2022, claiming its “
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`RFCyber then refused to stipulate to transfer to the Austin Division. Id. Although Apple disagrees
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`with RFCyber’s new characterization of its infringement contentions, Apple contends that the
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` but
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`expanded scope
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`No. 93 at 4.
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`Apple is a California corporation, but Apple has a campus in Austin, Texas,
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`. ECF
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` See ECF No. 18 ¶ 2; Declaration of Cynthia Ortega (“Ortega Decl.”) ¶ 5;
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`Declaration of Kim Tryggestad (“Tryggestad Decl.”) ¶ 5; Declaration of Lincoln Barker (“Barker
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`Decl.”) ¶ 5. Plaintiff RFCyber is a Texas corporation a place of business at 600 Columbus Avenue,
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`Suite 106, Waco, Texas 76701. Compl. ¶ 2.
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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—here, the Fifth Circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed.
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`Cir. 2008). 28 U.S.C. § 1404(a) provides in part that “[f]or the convenience of parties and
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`witnesses, . . . a district court may transfer any civil action to any other district or division where
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`it might have been brought . . . . ” Id. “Section 1404(a) is intended to place discretion in the district
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`court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration
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`of convenience and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting
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`Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
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`The preliminary question under § 1404(a) is whether a civil action “‘might have been
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`brought’ in the destination venue.” In re Volkswagen, Inc., 545 F.3d 304, 312 (5th Cir. 2008)
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`[hereinafter Volkswagen II]. If the destination venue would have been a proper venue, then “[t]he
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`determination of ‘convenience’ turns on a number of public and private interest factors, none of
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`which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358
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`F.3d 337, 340 (5th Cir. 2004) (footnote omitted). The private interest 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 (5th Cir. 2004) [hereinafter Volkswagen I] (citing Piper Aircraft Co. v. Reyno, 454
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`U.S. 235, 241 n.6 (1982)). The public factors include: “(1) the administrative difficulties flowing
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`from court congestion; (2) the local interest in having localized interests decided at home; (3) the
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`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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`Defendants should expect and accept some inconvenience when haled into Court. Def.
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`Distributed v. Bruck, 30 F.4th 414, 433 (5th Cir. 2022). The burden that a movant must carry is
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`not that the alternative venue is more convenient, but that it is clearly more convenient.
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`Volkswagen II, 545 F.3d at 314 n.10. Although the plaintiff’s choice of forum is not a separate
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`factor entitled to special weight, respect for the plaintiff’s choice of forum is encompassed in the
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`movant’s elevated burden to “clearly demonstrate” that the proposed transferee forum is more
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`convenient than the forum in which the case was filed. Id. at 315. “[T]he standard is not met by
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`showing one forum is more likely than not to be more convenient, but instead the party must
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`adduce evidence and arguments that clearly establish good cause for transfer based on convenience
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`and justice.” Def. Distributed, 30 F.4th at 433. 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. DISCUSSION
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`A. RFCyber’s Unclean Hands and Untimeliness Arguments
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`In its response to Apple’s Motion, RFCyber contends that Apple’s Motion should be denied
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`due to Apple’s unclean hands and untimeliness of presenting its Motion. ECF No. 102 at 6–10.
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`First, RFCyber contends that Apple’s original Motion to Transfer to the Northern District
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`of California (ECF No. 41) “contained numerous misrepresentations that caused RFCyber to
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`expend significant resources in venue discovery and delayed this case.” Id. at 6. According to
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`RFCyber, Apple’s reliance on Mr. Rollins in that Motion was erroneous because discovery
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`allegedly revealed that each of Mr. Rollins’s statements that Apple’s employees in Austin are
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`irrelevant were either “false or intentionally misleading.” Id. at 7. RFCyber therefore contends that
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`because these “allegations in Apple’s Motion to transfer were, at best, misleading and, at worst,
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`deliberately false[,] Apple should not be rewarded for its conduct and its Motion should be denied
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`on equitable grounds as well.” Id. at 9.
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`Apple replies that RFCyber’s unclean hands argument is meritless because Apple’s Motion
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`for inter-district transfer is now withdrawn and “the central issue now is whether Austin is clearly
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`more convenient than Waco.” ECF No. 105 at 5. According to Apple, it acknowledged from the
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`start that it has
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`. Id. But once RFCyber broadened its infringement contentions, Apple explains
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`that Apple withdrew its inter-district transfer motion and filed this Motion instead.
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`Although the Court sympathizes with RFCyber’s position that Apple’s tactics in its original
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`inter-district transfer motion were questionable, that issue is not presented in the Motion before
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`the Court here. Outside of one of this Court’s previous cases, RFCyber cites no authority
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`compelling this Court to deny Apple’s Motion for intra-district transfer on equitable grounds for
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`conduct related to Apple’s now-withdrawn motion for inter-district transfer. Upon considering the
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`special circumstances presented here, the Court finds that RFCyber’s request to deny Apple’s
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`motion on equitable grounds should be denied. Accordingly, the Court DENIES RFCyber’s
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`request to deny Apple’s Motion for unclean hands.
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`Second, RFCyber contends that Apple’s Motion should be denied as untimely. Id.
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`According to RFCyber, “Apple delayed filing its Motion until August 16, 2022, well after the
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`originally scheduled date for the Markman hearing in this case, and 11 months after the initial
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`complaint was filed.” Id. RFCyber asserts that Apple’s contention that “it did not realize until June
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`13, 2022, that functionality, such as Apple Wallet, Apple Cash, Passkit, Apple Pay, and other
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`related products, were accused” does not amount to “good cause.” Id. at 10.
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`Apple responds that “RFCyber does not cite any Court rule or precedent that renders this
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`motion untimely.” ECF No. 105 at 5. According to Apple, “[w]hen Apple filed this motion in
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`August 2022, the operative standing order set only a deadline for inter-district transfer.” Id. And
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`Apple explains that it “timely sought transfer to California based on its understanding of the scope
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`of infringement in April 2022.” Id. Apple also contends that RFCyber also was not unfairly
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`prejudiced by this turn of events as it did not increase the volume of venue discovery. Id.
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`The Court agrees with Apple and finds that Apple’s Motion was not untimely given the
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`circumstances. The applicable standing order at the time Apple filed its Motion did not set a
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`deadline for intra-district transfer. Moreover, the Court finds that Apple had good cause to
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`withdraw its original inter-district transfer motion and file this Motion instead. Ultimately, the
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`Court finds that RFCyber has failed to show any sufficient prejudice it suffered by Apple filing
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`this Motion. Indeed, after this Motion was filed, the only additional venue discovery RFCyber
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`conducted was serving a single interrogatory requesting information it already had from the earlier
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`venue discovery. See ECF No. 105 at 5. Given these unique circumstances, the Court finds that
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`RFCyber’s request to deny Apple’s Motion for untimeliness is unpersuasive. Accordingly, the
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`Court DENIES RFCyber’s request to deny Apple’s Motion for untimeliness.
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`B. Intra-District Transfer
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`The threshold determination in the § 1404(a) analysis is whether this case could initially
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`have been brought in the destination venue—the Austin Division of the Western Division of Texas.
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`See Monolithic Power Sys., Inc. v. Meraki Integrated Cir. (Shenzhen) Tech., Ltd., No. 6:20-CV-
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`00876-ADA, 2022 WL 958384, at *5 (W.D. Tex. Mar. 25, 2022). Neither party contests that venue
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`could be proper in the Austin Division. See ECF No. 93 at 9; see generally ECF No. 102. This
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`Court therefore finds that venue would have been proper in the Austin Division had the suit
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`originally been filed there. Thus, the Court now analyzes the private and public interest factors to
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`determine whether the Austin Division is a clearly more convenient forum than the Waco Division.
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`i. The Private Interest Factors
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`a) The Cost of Attendance and Convenience for Willing Witnesses
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`The most important factor in the transfer analysis is the convenience of the witnesses. In
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`re Genentech, Inc., 566 F.3d 1388, 1342 (Fed. Cir. 2009). According to Fifth Circuit law, if the
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`distance between a current venue and a proposed venue is more than 100 miles, the inconvenience
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`to witnesses increases in direct relationship to the additional distance they must travel if the matter
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`is transferred. Volkswagen II, 545 F.3d at 317. But it is unclear when the 100-mile rule applies, as
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`the Federal Circuit has stated that courts should not apply the rule “rigidly” in cases where
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`witnesses would be required to travel a significant distance no matter what venue they testify in.
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`In re Apple, 979 F.3d at 1342 (discussing witnesses traveling from New York) (citing Volkswagen
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`II, 545 F.3d at 317). “[T]he inquiry should focus on the cost and inconvenience imposed on the
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`witnesses by requiring them to travel to a distant forum and to be away from their homes and work
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`for an extended period of time.” In re Google, LLC, No. 2021-170, 2021 WL 4427899, at *4 (Fed.
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`Cir. Sept. 27, 2021). According to the Federal Circuit, time is a more important metric than
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`distance. Id. However, the Federal Circuit has also held that when willing witnesses will have to
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`travel a significant distance to either forum, the slight inconvenience of one forum in comparison
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`to the other should not weigh heavily on the outcome of this factor. In re Apple, 979 F.3d at 1342.
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`When analyzing this factor, the Court should consider all potential witnesses. Alacritech Inc. v.
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`CenturyLink, Inc., No. 2:16-CV-00693, 2017 WL 4155236, at *5 (E.D. Tex. Sept. 19, 2017).
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`Apple contends that this factor favors transfer to the Austin Division because “
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`” ECF No. 93 at 12 (citing Ortega Decl.
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`¶¶ 2–3; Tryggestad Decl. ¶¶ 2–3; Barker Decl. ¶¶ 2–3). In addition to Apple employees, Apple
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`asserts that RFCyber’s witnesses also weigh in favor of transfer to Austin. Id. According to Apple,
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`“[o]f those RFCyber identified as having knowledge relevant to this lawsuit, three are in
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`California, four are outside of the United States, one is in Austin (the prosecuting attorney of
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`record), two are in Texas but outside this District, and two are in Waco. Id. (citing ECF No. 93-4
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`(RFCyber Venue Rog. 1 Resp.) at 6–8, 10–11). And of the two Waco-based people identified by
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`RFCyber, Apple contends that “one (
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`) is no longer with RFCyber and was a part-time
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`office manager (see Ex. I (Clark Rough Tr.) at 4:14–21, 6:25–7:2, 8:25–11:20), and the other
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` is a professor at Baylor ‘conducting joint research with RFCyber’ and appears to have little if
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`any relevance to the issues in this case.” Id.
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`In response, RFCyber contends that this factor weighs against transfer. ECF No. 102 at 12.
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`RFCyber first argues that Apple’s alleged failure to provide the requested discovery as to its
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`potential witnesses’ home and office addresses justifies finding this factor to weigh against
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`transfer. Id. However, as explained above, the Court found that RFCyber’s alleged deficiencies
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`pertained to Apple’s now-withdrawn motion for inter-district transfer and not this Motion.
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`Accordingly, the Court finds that RFCyber’s allegations are neutral as to this factor. RFCyber then
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`contends that Apple’s Motion still fails to show that the cost of attendance for willing witnesses
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`weighs in favor of transfer. Id. RFCyber asserts that “Apple ignores the fact that RFCyber has an
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`office near the Waco courthouse and that its witnesses could use the RFCyber office and
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`conference room facilities in Waco, whereas if the trial were to be in Austin, RFCyber’s witnesses
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`would need to make alternative office arrangements.” Id. at 13.
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`Considering all of the above arguments of the parties, the Court finds that this factor weighs
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`in favor of transfer for the reasons that follow. It is undisputed that three relevant Apple employees
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`are based in Austin. RFCyber has identified no relevant witnesses under this factor in Waco
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`because
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` is a third party and will be considered below. RFCyber also ignores that the
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`prosecuting attorney of record is located in Austin. Accordingly, the Court finds that this factor
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`weighs in favor of transfer.
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`b) The Availability of Compulsory Process to Secure the Attendance of
`Witnesses
`Under the Federal Rules, a court may subpoena a witness to attend trial only (a) “within
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`100 miles of where the person resides, is employed, or regularly transacts business in person”; or
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`(b) “within the state where the person resides, is employed, or regularly transacts business in
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`person, if the person . . . is commanded to attend a trial and would not incur substantial expense.”
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`Fed. R. Civ. P. 45(c)(1)(A), (B)(ii). Under this factor, the Court focuses on non-party witnesses
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`whose attendance may need to be secured by a court order.” Fintiv Inc., 2019 WL 4743678, at *14
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`(citing Volkswagen II, 545 F.3d at 316). This factor “weigh[s] heavily in favor of transfer when
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`more third-party witnesses reside within the transferee venue than reside in the transferor venue.”
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`In re Apple, 581 F. App’x 886, 889 (Fed. Cir. 2014) (citing In re Genentech, 566 F.3d at 1345).
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`The Federal Circuit has held that “when there is no indication that a non-party witness is willing,
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`the witness is presumed to be unwilling and considered under the compulsory process factor.” In
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`re HP Inc., 2018 WL 4692486, at *3 n.1. But the Fifth Circuit has clarified that “the availability
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`of the compulsory process ‘receives less weight when it has not been alleged or shown that any
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`witness would be unwilling to testify.’” In re Planned Parenthood Fed'n of Am., Inc., 52 F.4th
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`625, 630–31 (5th Cir. 2022) (quoting Hefferan v. Ethicon Endo-Surgery Inc., 828 F.3d 488 (6th
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`Cir. 2016)).
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`Apple contends that this factor is neutral because it has identified no third parties who
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`would be subject to a subpoena issued from the Waco Division but would not be subject to a
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`subpoena issued from the Austin Division. ECF No. 93 at 11. RFCyber disagrees with Apple and
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`argues that compulsory process would be relevant at least as to
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` who works at Baylor
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`University. ECF No. 102 at 13. According to RFCyber, “Baylor University is located at 1311
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`South 5th Street, Waco, Texas 76798, 102 miles from the Austin courthouse, and therefore
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`compulsory process may not suffice in the Austin Division, whereas there would be no dispute for
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`compulsory process in Waco.” Id. at 14. Apple replies that
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` “is of marginal (if any) relevance
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`and RFCyber did not submit any declaration or other support that she plans to testify at trial. ECF
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`No. 105 at 3.
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`Contrary to RFCyber’s assertion that Baylor University is 102 miles away from the Austin
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`Federal Courthouse, the Court finds that it is less than one hundred miles in straight-line distance.
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`Because
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` can be compelled from either division, the Court finds that
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` is neutral
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`regarding this factor regardless of
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` relevance to this case. Because the parties identify no
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`other relevant third-party witnesses that this Court can compel under this factor, the Court finds
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`that this factor is neutral regarding transfer to the Austin Division.
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`c) The Relative Ease of Access to Sources of Proof
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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). “[T]he question is relative ease
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`of access, not absolute ease of access.” In re Radmax, 720 F.3d 285, 288 (5th Cir. 2013) (emphases
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`in original). “In patent infringement cases, the bulk of the relevant evidence usually comes from
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`the accused infringer. Consequently, the place where the defendant’s documents are kept weighs
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`in favor of transfer to that location.” In re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir. 2020) (citing
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`In re Genentech, 566 F.3d 1388, 1345 (Fed. Cir. 2009)).
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`According to Apple, the location of Apple’s sources of proof strongly favors transfer. ECF
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`No. 93 at 10. Apple explains that a “overwhelming majority of documents and witnesses are
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`located primarily in California or secondarily in Austin.” Id. Apple argues that it has no witnesses
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`or evidence in the Waco Division. Id. RFCyber responds that this factor weighs against transfer.
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`ECF No. 102 at 10. According to RFCyber, RFCyber developed patent-practicing products and
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`intends to rely on that source code at trial to antedate Apple’s prior art references. Id. at 11.
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`RFCyber explains that the “only copy of that source code is located in RFCyber’s Waco office.”
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`Id. RFCyber also argues that “contrary to Apple’s contention, RFCyber’s documents are kept in
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`its Waco office during the ordinary course of business.” Id. Apple replies that “RFCyber has not
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`identified any Apple sources of proof in the Waco Division.” ECF No. 105 at 2.
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`The Court finds that this factor weighs slightly in favor of transfer to the Austin Division.
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`Apple has identified relevant sources of proof in the Austin Division. But because RFCyber has
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`alleged that it developed patent-practicing products and the source code for those products is
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`available only in Waco, RFCyber has shown that there are at least some relevant sources of proof
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`in Waco that weigh against transfer. On balance, the Court finds that this factor weighs slightly in
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`favor of transfer to the Austin Division.
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`d) All Other Practical Problems That Make Trial of a Case Easy,
`Expeditious, and Inexpensive.
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`When considering the private interest factors, courts must also 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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`314. “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 at 1346 n.3.
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`Apple contends that this factor is neutral because there are no practical problems that weigh
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`against transfer. ECF No. 93 at 13. RFCyber responds that this factor weighs against transfer
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`because this Court has already issued a claim construction order and discovery is well underway.
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`ECF No. 102 at 14. Although it is true that the Court has already issued a claim construction order
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`and discovery has begun, the Court finds that there are no co-pending cases that weigh against
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`transfer to the Austin Division. Accordingly, the Court finds this factor neutral.
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`ii. The Public Interest Factors
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`a) Administrative Difficulties Flowing from Court Congestion
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`This factor concerns “whether there is an appreciable difference in docket congestion
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`between the two forums.” In re Adobe Inc., 823 Fed. App’x 929, 932 (Fed. Cir. 2020). It considers
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`the “[t]he speed with which a case can come to trial and be resolved.” In re Genentech, Inc., 566
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`F.3d at 1347. In this analysis, court congestion is considered “the most speculative” factor, and
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`when “relevant factors weigh in favor of transfer and others are neutral, then the speed of the
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`transferee district court should not alone outweigh all those other factors.” Id.
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`In its Motion, Apple contends that this factor is neutral. ECF No. 93 at 13. The Court
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`agrees. Accordingly, the Court finds that this factor is neutral.
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`b) Local Interest in Having Localized Interests Decided at Home
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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. Local interests in patent cases “are not a fiction.”
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`In re Samsung Elecs. Co., 2 F.4th 1371, 1380 (Fed. Cir. 2021). “A local interest is demonstrated
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`by a relevant factual connection between the events and the venue.” Word to Info, Inc. v. Facebook,
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`Inc., No. 3:14-CV-04387-K, 2015 WL 13870507, at *4 (N.D. Tex. Jul. 23, 2015). “[T]he 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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`re Apple, 979 F.3d at 1344 (emphasis in original) (quoting In re Acer Am. Corp., 626 F.3d 1252,
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`1256 (Fed. Cir. 2010)). Courts should not heavily weigh a party’s general contacts with a forum
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`Case 6:21-cv-00916-ADA Document 149 Filed 06/14/23 Page 14 of 15
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`that are untethered from the lawsuit, such as a general presence. Id. Moreover, “little or no weight
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`should be accorded to a party’s ‘recent and ephemeral’ presence in the transferor forum, such as
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`by establishing an office in order to claim a presence in the district for purposes of litigation.” In
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`re Juniper Networks, Inc., 14 F.4th at 1320 (quoting In re Microsoft Corp., 630 F.3d 1361, 1365
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`(Fed. Cir. 2011)). To determine which district has the stronger local interest, the Court looks to
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`where the events forming the basis for infringement occurred. Id. at 1319.
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`Apple contends that this factor favors transfer because “Apple employs thousands of
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`employees in Apple’s Austin facility who work on [the relevant] aspects of Apple Pay, Apple
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`Wallet, and Apple Cash.” ECF No. 93 at 14. Although RFCyber responds that Apple has “no basis
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`to contend that it has any local interest in Austin,” the Court disagrees and finds that Apple has
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`presented sufficient evidence of a significant connection of this case to the Austin Division.
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`Accordingly, the Court finds that this factor favors transfer to the Austin Division.
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`c) Familiarity of the Forum with the Law That will Govern the Case
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`
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`Apple and RFCyber agree that this factor is neutral—both forums are familiar with the law
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`that will govern this case. ECF No. 93 at 15; see ECF No. 102 at 15. The Court agrees.
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`d) Avoidance of Unnecessary Problems of Conflict of Laws or in the
`Application of Foreign Law
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`
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`Apple and RFCyber agree that this factor is neutral—there are no potential conflicts here.
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`ECF No. 93 at 15; see ECF No. 102 at 15. The Court agrees.
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`IV. CONCLUSION
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`Having considered the private and public interest factors, the Court’s conclusion for each
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`factor is summarized in the following table:
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`Factor
`Cost of attendance for willing witnesses
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`The Court’s Finding
`Weighs in favor of transfer
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`
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`14
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`Case 6:21-cv-00916-ADA Document 149 Filed 06/14/23 Page 15 of 15
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`Availability of compulsory process to secure the
`attendance of witnesses
`The relative ease of access to sources of proof
`All other practical problems that make the trial of a
`case easy, expeditious and inexpensive
`Administrative difficulties flowing from court
`congestion
`Local interest
`Familiarity of the forum with the law that will
`govern the case
`Problems associated with conflicts of law
`
`Neutral
`
`Weighs slightly in favor of transfer
`Neutral
`
`Neutral
`
`Weighs in favor of transfer
`Neutral
`
`Neutral
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`In sum, Apple has shown that two factors weigh in favor of transfer, one factor weighs
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`slightly in favor of transfer, and no factors weigh against transfer. Accordingly, Apple has met its
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`burden to show that the Austin Division is a clearly more convenient venue. Volkswagen II, 545
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`F.3d at 314 n.10. It is therefore ORDERED that Apple’s motion to transfer venue to the Austin
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`Division of the Western District of Texas (ECF No. 93) is GRANTED and that the above-styled
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`case be TRANSFERRED to the Austin Division but remain on the docket of United States District
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`Judge Alan D Albright. IT IS FURTHER ORDERED that the stay of the above-styled case
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`entered by the Court on March 7, 2023, (ECF No. 144) is therefore lifted.
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`SIGNED this 6th day of June, 2023.
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`15
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