Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 1 of 21
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`
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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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`
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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 OPPOSED MOTION FOR INTRA-DISTRICT
`TRANSFER TO THE AUSTIN DIVISION
`PURSUANT TO 28 U.S.C. § 1404(a)
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`PUBLIC VERSION
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`

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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 2 of 21
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`
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
`
`III.
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`IV.
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`INTRODUCTION ...............................................................................................................1
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`BACKGROUND .................................................................................................................2
`
`A.
`
`B.
`
`C.
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`Apple And Its Witnesses ..........................................................................................4
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`RFCyber ...................................................................................................................5
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`Known Third-Party Witnesses .................................................................................7
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`LEGAL STANDARD ..........................................................................................................8
`
`IN THIS PARTICULAR CASE, THE AUSTIN DIVISION IS CLEARLY MORE
`CONVENIENT THAN THE WACO DIVISION. ..............................................................9
`
`A.
`
`B.
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`This Case Could Have Been Brought In The Austin Division. ...............................9
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`The Private Interest Factors Favor Transfer To The Austin Division. ....................9
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`1.
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`2.
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`3.
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`4.
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`The Relative Ease Of Access To Sources Of Proof Favors Transfer
`To Austin, Because No Sources Of Proof Are In Waco. ...........................10
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`The Availability Of Subpoena Power Is Neutral As Between The
`Austin And Waco Divisions. .....................................................................11
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`The Attendance Of Willing Witnesses Strongly Favors Transfer To
`The Austin Division. ..................................................................................11
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`The “All Other Practical Problems” Factor Is, At Worst, Neutral. ............13
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`C.
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`The Public Interest Factors Favor Transfer To The Austin Division. ...................13
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`1.
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`2.
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`3.
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`There Are No Administrative Difficulties Stemming From Court
`Congestion that Weigh Against Transfer. ..................................................13
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`The Local Interest Factor Favors Transfer To The Austin Division. ........14
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`Familiarity With The Governing Law And Conflicts Of Law Are
`Neutral........................................................................................................15
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`V.
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`CONCLUSION ..................................................................................................................15
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`i
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 3 of 21
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`
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
`
`In re Apple Inc.,
`818 F. App’x 1001 (Fed. Cir. June 16, 2020) ..........................................................................11
`
`In re Apple Inc.,
`979 F.3d 1332 (Fed. Cir. 2020)..........................................................................................10, 14
`
`In re Apple Inc.,
`No. 2021-187, 2021 WL 4485016 (Fed. Cir. Oct. 1, 2021).....................................................12
`
`Auto-Dril, Inc. v. Nat’l Oilwell Varco, L.P.,
`No. 6:15-cv-00091, 2016 WL 6909479 (W.D. Tex. Jan. 28, 2016) ........................................11
`
`Datascape, Ltd. v. Dell Techs., Inc.,
`No. 6:19-cv-00129-ADA, 2019 WL 4254069 (W.D. Tex. June 7, 2019) .....................9, 11, 14
`
`Fairfield Indus. Inc. v. Wireless Seismic, Inc.,
`No. 2:13-CV-903-JRG-RSP, 2014 WL 4829071 (E.D. Tex. Sept. 26, 2014) .........................14
`
`Freshub, Inc. v. Amazon.com Inc.,
`No. 1:19-cv-00388-ADA, 2019 WL 10856832 (W.D. Tex. Sept. 9, 2019) ...........9, 10, 12, 13
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)....................................................................................10, 11, 13
`
`HD Silicon Sols. LLC v. Microchip Tech. Inc.,
`No. 20-cv-01092-ADA, 2021 WL 4953884 (W.D. Tex. Oct. 25, 2021) .................................11
`
`In re Juniper Networks, Inc.,
`14 F.4th 1313 (Fed. Cir. 2021) ................................................................................................11
`
`Micropairing Techs. LLC v. Toyota Mfg. Tex., Inc.,
`No. 6-20-CV-01001-ADA, 2021 WL 4526704 (W.D. Tex. Oct. 1, 2021)..........................9, 13
`
`Mimedx Grp., Inc. v. Texas Hum. Biologics, Ltd.,
`No. 1:14-cv-464-LY, 2014 WL 12479284 (W.D. Tex. Aug. 12, 2014) ........................9, 13, 14
`
`In re Pandora,
`No. 2021-172, 2021 WL 4772805 (Fed. Cir. Oct. 13, 2021).............................................11, 12
`
`In re Radmax, Ltd.,
`720 F.3d 285 (5th Cir. 2013) .......................................................................................1, 8, 9, 11
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`ii
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 4 of 21
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`RFCyber Corp. v. Google LLC,
`2:20-cv-00274-JRG, Dkt. 1 (E.D. Tex. Aug. 21, 2020) ..................................................6, 7, 10
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`RFCyber Corp. v. Google LLC,
`2:20-cv-00274-JRG, Dkt. 259 (E.D. Tex. Feb. 8, 2022) .......................................................6, 7
`
`RFCyber Corp. v. LG Elecs., Inc.,
`2:20-cv-00336-JRG-RSP, Dkt. 1 (E.D. Tex. Oct. 16, 2020) .........................................6, 10, 13
`
`RFCyber Corp. v. Samsung Elecs. Co., Ltd.,
`2:20-cv-00335-JRG-RSP, Dkt. 1 (E.D. Tex. Oct. 16, 2020) .........................................6, 10, 13
`
`In re TS Tech USA Corp.,
`551 F.3d 1315 (Fed. Cir. 2008)................................................................................................15
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) ...............................................................................................7, 14
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) (en banc) ...............................................................................8, 10
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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) ..................................14
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`Statutes
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`28 U.S.C. § 1404(a) .....................................................................................................................8, 9
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`iii
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 5 of 21
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`I.
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`INTRODUCTION
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`Apple respectfully moves to transfer this case from the Waco Division to the Austin
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`Division of this District. Apple initially sought to transfer this case to the Northern District of
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`California based on its understanding of the scope of the accused products and accused features.
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`During venue discovery, RFCyber took the position that its infringement contentions extend to
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`features beyond those Apple had considered relevant when it sought transfer to California.
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`Although Apple disagrees that RFCyber’s contentions can extend to these other features, the
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`expanded scope of RFCyber’s contentions have implicated additional Apple witnesses who live
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`and work in Austin. In light of this recent development, Apple asked RFCyber to stipulate to
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`transfer to the Austin Division, but RFCyber refused. Thus, given the expanded scope of
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`RFCyber’s contentions and the implication of Austin-based witnesses and sources of proof and
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`although California remains more convenient generally, Apple has withdrawn its motion to
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`transfer to California (ECF No. 92) and now seeks transfer to the Austin Division—which is the
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`clearly more convenient venue relative to the Waco Division.
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`As such, based on RFCyber’s alleged scope of the case, Apple’s relevant witnesses and
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`evidence are located primarily in Northern California with some in Austin. There are no Apple
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`witnesses or evidence nor any third parties relevant to this case in the Waco Division. Plaintiff
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`RFCyber is a Texas shell for a Chinese company with no meaningful connections to Waco. In
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`fact, RFCyber has admitted in pleadings filed in the Eastern District of Texas that its principal
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`place of business is in Plano, Texas. In accordance with the factors set forth in In re Radmax,
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`Ltd., 720 F.3d 285 (5th Cir. 2013), the Austin Division is a clearly more convenient venue than
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`the Waco Division for this dispute.
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`1
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 6 of 21
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`II.
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`BACKGROUND
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`RFCyber filed its original complaint on September 7, 2021, accusing Apple of infringing
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`five patents. RFCyber then filed an amended complaint on December 2, 2021 adding a sixth
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`patent. RFCyber asserts that Apple’s products that include Apple Pay, Apple Wallet, or Apple
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`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 ECF No. 18 at ¶ 14; see also id. at ¶ 15 (“Apple has distributed
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`variants of Apple Pay that have included functionality to emulate a payment card and settle a
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`transaction via NFC and/or MSJ at least since October 2014.”). On December 21, 2021,
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`RFCyber served its infringement contentions, which did not make any reference to non-payment
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`aspects of Apple Pay, Apple Wallet, or Apple Cash, such as identity or access features. See Exs.
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`A-F (RFCyber infringement contentions). RFCyber’s focus on payment aspects of the accused
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`features are illustrated below:
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`Patent/Claim Limitation
`’218 Patent limitation 1[b]: the
`portable device … configured to
`facilitate communication
`between the e-purse Applet and
`a payment server …
`’855 Patent limitation 1[e]: …
`responding to the fund transfer
`request
`’787 Patent claim 1 preamble: A
`portable device for commerce …
`’009 Patent claim 1 preamble: A
`mobile device for conducting a
`secured transaction …
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`RFCyber Infringement Contentions
`“Every Accused Product performs a method wherein the
`portable device … is configured to facilitate
`communication between the e-purse applet and a payment
`server ….” Ex. A at 19-20 (emphasis added).
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`“Every Accused Product performs … responding to the
`fund transfer request.” Ex. B at 9 (emphasis added).
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`“Every Accused Product comprises a portable device for
`commerce.” Ex. C at 3.
`“Every Accused Product comprises a mobile device for
`conducting a secured transaction over a network. For
`example, the Apple iPhone 13 Pro conducts secured
`transactions (such as contactless, online, in-app, and peer-
`to-peer transactions) over a network, such as the internet,
`using Apple Pay, Apple Wallet, and/or Apple Cash.” Ex. D
`at 2 (emphasis added).
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`2
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 7 of 21
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`’046 Patent claim 1 preamble: A
`method for mobile payment …
`’724 Patent claim 1 preamble: A
`mobile device for emulating a
`plurality of cards …
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`“Every Accused Product performs a method for mobile
`payment.” Ex. E at 2 (emphasis added).
`“Every Accused Product comprises a mobile device for
`emulating a plurality of cards. For example, the iPhone 13
`Pro comprises a mobile device for emulating a plurality of
`payment cards, such as a plurality of cards (e.g. credit,
`debit, loyalty, membership, and/or gift cards, or Apple
`Cash) provisioned in Apple Pay and/or Apple Wallet.” Ex.
`F at 4 (emphasis added).
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`On April 18, 2022, and based on Apple’s investigation and understanding that the
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`payment related aspects of Apple Pay, Apple Wallet, and Apple Cash were primarily designed,
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`developed, and serviced by California-based Apple employees, Apple moved to transfer this case
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`to the Northern District of California. See ECF No. 41. During a June 13, 2022 discovery dispute
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`hearing related to Apple’s transfer motion, RFCyber 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,
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`such as driver’s license functionality, were within the scope of its infringement contentions. See
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`Ex. G, June 13, 2022 Hrg. Tr. at 12:21 (“
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`
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`”). Apple disagrees that RFCyber’s
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`claims or RFCyber’s infringement contentions are broad enough to cover non-payment features
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`and argued the same at the hearing. See id. at 17:6-11
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`Based on RFCyber’s representations about the broad scope of its contentions, the Court
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`ordered venue discovery into the non-payment aspects of the accused products. Id. at 18:15-25.
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`As a result, on June 16, 2022, Apple notified RFCyber that, given RFCyber’s new position about
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`the purported scope of its contentions that for the first time made certain employees in Austin
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`relevant, Apple was willing to litigate this case in the Austin Division. Ex. H (email chain).
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`RFCyber responded on June 22, 2022, claiming its “infringement contentions clearly extend to
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`provisioning and personalization of card applets … irrespective of whether the applet
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`3
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 8 of 21
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`corresponds with a credit, debit, loyalty, transit, identity, or other card within Apple Pay, Apple
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`Cash, Applet Wallet, or Passkit,” but RFCyber then refused to stipulate to transfer to the Austin
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`Division. Id. Although Apple disagrees with RFCyber’s new characterization of its infringement
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`contentions, the expanded scope implicates new Apple witnesses, a number of whom live and
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`work in Austin.
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`A.
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`Apple And Its Witnesses
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`Apple is a California corporation employing more than 35,000 people in or around its
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`headquarters in Cupertino, California, where Apple’s management and primary research and
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`development facilities reside. See Declaration of Mark Rollins (“Rollins Decl.”) (ECF No. 41-1)
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`¶ 3. Apple also has a campus in Austin and employs thousands of people in and around the
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`Austin area. The primary operation, marketing, sales, and finance decisions for Apple products
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`occur in or around Cupertino, and Apple business records related to product revenue are located
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`there. Id. The Apple witnesses who have unique information about the research, design,
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`development, and operation of Apple Pay, Apple Wallet, and Apple Cash are located in
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`California (six) or in Austin (three), while none are in the Waco Division. See Declaration of
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`Cynthia Ortega (“Ortega Decl.”) ¶ 5; Declaration of Kim Tryggestad (“Tryggestad Decl.”) ¶ 5;
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`Declaration of Lincoln Barker (“Barker Decl.”) ¶ 5.
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`Based on RFCyber’s allegations, the following are the Apple employees who are likely to
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`be witnesses in this case, along with the subject matter of their expected testimony. These
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`employees (including the majority of their relevant U.S.-based teams) are in Northern California
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`or in Austin, and none are in Waco:
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`Name
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`Title
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`4
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`Expected Testimony
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 9 of 21
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`B.
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`RFCyber
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`RFCyber is a Texas shell for a Chinese company. A company called Shenzhen RFCyber
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`Asset Management, LLP (“RFCyber Shenzhen”) purports to own the asserted patents and is
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`trying to manufacture a connection to the Waco Division by creating an RFCyber entity in
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`5
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 10 of 21
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`Texas. See Ex. 1 to Motion to Transfer (ECF No. 42-1) (patent assignment to RFCyber
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`Shenzhen); Ex. 2 to Motion to Transfer (ECF No. 42-2) (RFCyber Texas business registration).
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`Although RFCyber claims to have a “place of business” in Waco (ECF No. 18 at ¶ 1), RFCyber
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`has only ephemeral connections to the Waco Division. Specifically, RFCyber’s listed “place of
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`business” at 600 Columbus Avenue, Suite 106 in Waco is the address of WacoWork, which is a
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`“co-working space in Waco, TX” that “offer[s] a shared working environment.” Ex. 3 to Motion
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`to Transfer (ECF No. 42-3) (WacoWork website). RFCyber’s purported (now former) part-time
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`Waco office manager, Jessica Clark, confirmed in her deposition that:
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`. In cases in the Eastern District of Texas involving many of the
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`same asserted patents, RFCyber has admitted that its principal place of business is in Plano, in
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`the Eastern District of Texas. See RFCyber Corp. v. Google LLC, 2:20-cv-00274-JRG, Dkt. 1 at
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`1 (E.D. Tex. Aug. 21, 2020); RFCyber Corp. v. LG Elecs., Inc., 2:20-cv-00336-JRG-RSP, Dkt. 1
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`at 1 (E.D. Tex. Oct. 16, 2020); RFCyber Corp. v. Samsung Elecs. Co., Ltd., 2:20-cv-00335-JRG-
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`RSP, Dkt. 1 at 1 (E.D. Tex. Oct. 16, 2020).
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`In a recent order in the Eastern District of Texas, Judge Gilstrap made a number of
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`factual findings about RFCyber that, in evaluating its standing to assert these patents, also bear
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`on RFCyber’s lack of connection to the Waco Division. See RFCyber Corp. v. Google LLC,
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`2:20-cv-00274-JRG, Dkt. 259 (E.D. Tex. Feb. 8, 2022) (“EDTX Order”). Judge Gilstrap found
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`that in 2014, the Fremont, California-based RFCyber Corporation assigned certain patents to
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`RFCyber Shenzhen, based in Shenzhen, China. See EDTX Order at 3; see also Ex. 1 to Motion
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`6
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 11 of 21
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`to Transfer (ECF No. 42-1) (’218 patent assignment). On June 16, 2020, RFCyber registered to
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`do business in Texas (see Ex. 2 to Motion to Transfer (ECF No. 42-2)), and on July 30, 2020,
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`RFCyber entered into an “Exclusive Patent License Agreement” with RFCyber Shenzhen. See
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`EDTX Order at 3. On August 21, 2020, RFCyber filed its first Eastern District of Texas lawsuit
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`claiming a principal place of business in Plano, Texas. RFCyber Corp. v. Google LLC, 2:20-cv-
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`00274-JRG, Dkt. 1 at 1 (E.D. Tex. Aug. 21, 2020). RFCyber is therefore not “at home” in the
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`Waco Division (In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”))—if
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`anything, RFCyber is “at home” in China, in the Northern District of California, or in the Eastern
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`District of Texas.
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`C.
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`Known Third-Party Witnesses
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`Prior art by VivoTech—both system art and VivoTech patents—will be invalidating prior
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`art to the RFCyber asserted patents. VivoTech was an early pioneer in developing a platform for
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`contactless gift, credit, and loyalty card solutions. See Ex. 7 to Motion to Transfer (ECF No. 42-
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`7) (Vivo platform datasheet). VivoTech was based in Santa Clara, California and many of its
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`former employees still live there today. Id. For instance, the prior art VivoTech patent, U.S.
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`Patent No. 7,469,151 (Ex. 8 to Motion to Transfer (ECF No. 42-8)), lists five inventors, all of
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`whom appear to be located in Northern California. See Exs. 9-13 to Motion to Transfer (ECF No.
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`42-9 to 42-13) (VivoTech inventor LinkedIn profiles).
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 12 of 21
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`III. LEGAL STANDARD
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`For the convenience of parties and witnesses and in the interest of justice, a district court
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`may transfer any action to any other district or division where the case “might have been
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`brought.” See In re Volkswagen of Am., Inc., 545 F.3d 304, 312 (5th Cir. 2008) (en banc)
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`(quoting 28 U.S.C. § 1404(a)). Once that threshold is met, courts then determine if the transferee
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`venue is “clearly more convenient” by weighing the relative convenience of each venue,
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`considering: (1) access to sources of proof; (2) availability to secure the attendance of witnesses;
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`(3) cost of attendance for witnesses; (4) other practical problems making trial easy, expeditious
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`and inexpensive; (5) administrative difficulties from court congestion; (6) local interest to decide
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`localized issues; (7) forum’s familiarity with the governing law; and (8) avoidance of conflict of
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`laws or foreign law. Radmax, 720 F.3d at 288 (quoting Volkswagen, 545 F.3d at 315).
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`8
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 13 of 21
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`Section 1404(a) “appl[ies] as much to transfers between divisions of the same district as
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`to transfers from one district to another.” Radmax, 720 F.3d at 288. This Court has repeatedly
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`recognized and affirmed this principle. Here, because there are relevant connections to the
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`Austin Division and none to the Waco Division, this case should be transferred to the Austin
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`Division. See Micropairing Techs. LLC v. Toyota Mfg. Tex., Inc., No. 6-20-CV-01001-ADA,
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`2021 WL 4526704, at *6 (W.D. Tex. Oct. 1, 2021); Freshub, Inc. v. Amazon.com Inc., No. 1:19-
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`cv-00388-ADA, 2019 WL 10856832, at *1-2 (W.D. Tex. Sept. 9, 2019); Datascape, Ltd. v. Dell
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`Techs., Inc., No. 6:19-cv-00129-ADA, 2019 WL 4254069, at *2 (W.D. Tex. June 7, 2019);
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`Mimedx Grp., Inc. v. Texas Hum. Biologics, Ltd., No. 1:14-cv-464-LY, 2014 WL 12479284, at
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`*3 (W.D. Tex. Aug. 12, 2014).
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`IV.
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`IN THIS PARTICULAR CASE, THE AUSTIN DIVISION IS CLEARLY MORE
`CONVENIENT THAN THE WACO DIVISION.
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`A.
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`This Case Could Have Been Brought In The Austin Division.
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`There is no dispute RFCyber could have filed this case in the Austin Division. Apple has
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`a campus in Austin where it employs thousands of employees, including dozens of employees
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`who work on several of the non-payment aspects of Apple Pay, Apple Wallet, and Apple Cash,
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`which RFCyber claims (incorrectly) are within the scope of its infringement contentions. Ortega
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`Decl. ¶ 2; Tryggestad Decl. ¶ 2, 4; Barker Decl. ¶ 2, 4; Ex. G (June 13, 2022 Hrg. Tr.) at 12:21-
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`17:11.
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`B.
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`The Private Interest Factors Favor Transfer To The Austin Division.
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`The private interest factors strongly favor transfer to the Austin Division because any
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`relevant witnesses and evidence implicated by the expanded scope of RFCyber’s infringement
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`contentions are located in California or Austin, not in the Waco Division.
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 14 of 21
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`1.
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`The Relative Ease Of Access To Sources Of Proof Favors Transfer To
`Austin, Because No Sources Of Proof Are In Waco.
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`“In patent infringement cases, the bulk of the relevant evidence usually comes from the
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`accused infringer. Consequently, the place where the defendant’s documents are kept weighs in
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`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, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009)). Even with the availability of
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`electronic discovery, the location of sources of proof still is an important factor in the transfer
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`analysis. Volkswagen II, 545 F.3d at 316.
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`Here, the overwhelming majority of documents and witnesses are located primarily in
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`California or secondarily in Austin. Rollins Decl. ¶¶ 16-17; Ortega Decl. ¶ 4; Tryggestad Decl.
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`¶ 4; Barker Decl. ¶ 4; Ex. G (June 13, 2022 Hrg. Tr.) at 12:21-17:11. Critically, Apple has no
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`witnesses or sources of proof in the Waco Division. Freshub, Inc. v. Amazon.com Inc., No. 19-
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`cv-388-ADA, 2019 WL 10856832, at *1 (W.D. Tex. Sept. 9, 2019) (“Of greatest import to the
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`Court is that no anticipated party or non-party witnesses reside in the Waco Division.”).
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`RFCyber likely has only a handful of documents. And Apple contends that none of those
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`documents are kept in the Waco Division in the ordinary course of business. Indeed, RFCyber
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`does not allege any meaningful connection to the Waco Division in its complaint, and RFCyber’s
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`stated principal place of business is in Plano, in the Eastern District of Texas. See RFCyber
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`Corp. v. Google LLC, 2:20-cv-00274-JRG, Dkt. 1 at 1 (E.D. Tex. Aug. 21, 2020); RFCyber
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`Corp. v. LG Elecs., Inc., 2:20-cv-00336-JRG-RSP, Dkt. 1 at 1 (E.D. Tex. Oct. 16, 2020);
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`RFCyber Corp. v. Samsung Elecs. Co., Ltd., 2:20-cv-00335-JRG-RSP, Dkt. 1 at 1 (E.D. Tex.
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`Oct. 16, 2020). And based on Apple’s investigation to date, there are no third-party sources of
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`proof in the Waco Division either.
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 15 of 21
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`Thus, the relative ease of access to sources of proof relevant to this case strongly favors
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`the Austin Division over the Waco Division. Datascape, Ltd. v. Dell Techs., Inc., No. 6:19-CV-
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`00129-ADA, 2019 WL 4254069, at *2 (W.D. Tex. June 7, 2019) (quoting Radmax, 720 F.3d at
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`288) (factor focuses on “relative ease of access, not absolute ease of access” to sources of proof).
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`2.
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`The Availability Of Subpoena Power Is Neutral As Between The
`Austin And Waco Divisions.
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`The availability of compulsory process to secure witness attendance is neutral. Neither
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`Apple nor RFCyber have identified any third parties who would be subject to a subpoena issued
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`out of the Waco Division but who would not be subject to a subpoena issued out of the Austin
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`Division, or vice versa. Thus, the subpoena power of the Waco and Austin Divisions is equal
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`with respect to this case.
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`3.
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`The Attendance Of Willing Witnesses Strongly Favors Transfer To
`The Austin Division.
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`The cost of attendance for the willing witnesses factor also favors transfer to the Austin
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`Division. This factor considers the cost of attendance of all willing witnesses, including party
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`and non-party witnesses. In re Pandora, No. 2021-172, 2021 WL 4772805, at *2-3 (Fed. Cir.
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`Oct. 13, 2021). The single most important factor in the transfer analysis is the convenience of
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`willing witnesses. See In re Apple Inc., 818 F. App’x 1001, 1003 (Fed. Cir. June 16, 2020); In re
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`Genentech, Inc., 566 F.3d 1338, 1343 (Fed. Cir. 2009); Auto-Dril, Inc. v. Nat’l Oilwell Varco,
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`L.P., No. 6:15-cv-00091, 2016 WL 6909479 at *7 (W.D. Tex. Jan. 28, 2016); HD Silicon Sols.
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`LLC v. Microchip Tech. Inc., No. 20-cv-01092-ADA, 2021 WL 4953884, at *5 (W.D. Tex. Oct.
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`25, 2021) (“[T]he Federal Circuit now takes the position that this Court should not accord the
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`convenience of party witnesses less weight.”) (citing In re Juniper Networks, Inc., 14 F.4th 1313
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`(Fed. Cir. 2021)).
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 16 of 21
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`Apple has identified at least three witnesses who work in Austin on the newly disclosed
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`non-payment accused features,
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`
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`
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` in Austin. Ortega Decl. ¶¶ 2-3;
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`Tryggestad Decl. ¶¶ 2-3; Barker Decl. ¶¶ 2-3. The Austin Division is clearly more convenient for
`
`those witnesses than the Waco Division because Apple’s Austin-based witnesses could remain
`
`home during trial or any other proceeding in which their attendance is necessary, rather than
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`having to drive more than 100 miles and stay at a hotel in Waco. See Freshub, 2019 WL
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`10856832, at *2 (“[E]ven 80 or 90 miles is inconvenient.”); In re Apple Inc., No. 2021-187, 2021
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`WL 4485016, at *2 (Fed. Cir. Oct. 1, 2021) (no direct flights from California to Waco);
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`Pandora, 2021 WL 4772805, at *6 (“There is no major airport in the Waco Division of the
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`Western District of Texas.”). On the other hand, Apple is not aware of any witnesses who live or
`
`work in the Waco Division.
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`The same is also true of likely RFCyber witnesses. Of those RFCyber identified as
`
`having knowledge relevant to this lawsuit, three are in California, four are outside of the United
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`States, one is in Austin (the prosecuting attorney of record), two are in Texas but outside this
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`District, and two are in Waco. Ex. J (RFCyber Venue Rog. 1 Resp.) at 6-8, 10-11.
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 17 of 21
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`Here, because the travel times to Waco are greater for virtually all potential witnesses,
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`this factor strongly favors transfer to the Austin Division. See Freshub, 2019 WL 10856832, at
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`*1-2; Mimedx, 2014 WL 12479284, at *2.
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`4.
`
`The “All Other Practical Problems” Factor Is, At Worst, Neutral.
`
`There are no practical problems that weigh against transfer. The case is in its early stages,
`
`with discovery having just opened on June 22, 2022. No court has previously overseen a case
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`regarding the asserted ’724 patent until this case. RFCyber also filed three lawsuits asserting five
`
`of the six asserted patents in the Eastern District of Texas in 2020, so RFCyber already elected to
`
`litigate its patents in multiple districts. See RFCyber Corp. v. Google LLC f/k/a Google Inc., 20-
`
`cv-00274; RFCyber Corp. v. Samsung Elecs. Co., Ltd., 20-cv-00335; and RFCyber Corp. v. LG
`
`Elecs., Inc., 20-cv-00336. RFCyber cannot be heard to complain about relocating this case to a
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`more convenient venue.
`
`C.
`
`The Public Interest Factors Favor Transfer To The Austin Division.
`
`The public interest factors are all either neutral or favor transfer to the Austin Division.
`
`1.
`
`There Are No Administrative Difficulties Stemming From Court
`Congestion that Weigh Against Transfer.
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`This “factor is the ‘most speculative’ of the factors bearing on the transfer decision.”
`
`Micropairing, 2021 WL 4526704, at *5 (citing In re Genentech, Inc., 566 F.3d 1338, 1347 (Fed.
`
`Cir. 2009)). However, there is a dramatic difference in the number of active patent cases pending
`
`in the Waco Division (more than 800) versus those pending in the Austin Division (50). See
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`Ex. K. This indicates court congestion is greater in Waco than it is in Austin. Therefore, this
`
`factor also favors transfer to Austin. To the extent RFCyber focuses on the likely case schedule
`
`and trial date in this case, the Federal Circuit has held that “a court’s general ability to set a fast-
`
`paced schedule is not particularly relevant to this factor.” In other words, a court “cannot merely
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`set an aggressive trial date and subsequently conclude, on that basis alone, that other forums that
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`historically do not resolve cases at such an aggressive pace are more congested for venue transfer
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`purposes.” In re Apple, 979 F.3d 1332, 1344 (Fed. Cir. 2020).
`
`2.
`
`The Local Interest Factor Favors Transfer To The Austin Division.
`
`The local interest consideration “is based on the principle that jury duty is a burden that
`
`ought not to be imposed upon the people of a community that has no relation to the litigation.”
`
`Fairfield Indus. Inc. v. Wireless Seismic, Inc., No. 2:13-CV-903-JRG-RSP, 2014 WL 4829071,
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`at *4 (E.D. Tex. Sept. 26, 2014) (quoting Volkswagen I, 371 F.3d at 205-06) (internal citation
`
`omitted). “A local interest is demonstrated by a relevant factual connection between the events
`
`and the venue.” Word to Info, Inc. v. Facebook, Inc., No. 3:14-cv-43870-K, 2015 WL 13870507,
`
`at *4 (N.D. Tex. July 23, 2015).
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`Here, the Waco Division “has no relation to the litigation.” Fairfield, 2014 WL 4829071
`
`at *4. The Austin Division, on the other hand, has some interest in resolving this dispute because
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`at least some of the events relevant to this case occurred there, according to RFCyber’s view of
`
`the scope of its infringement contentions. RFCyber now claims that the Identity-related aspects
`
`of Apple Wallet (such as provisioning a driver’s license), Access aspects (such as provisioning
`
`hotel or car keys), e-commerce, server-side software for processing payments where Apple is
`
`acting as the merchant, and quality control testing are covered by its infringement contentions.
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`Apple employs thousands of employees in Apple’s Austin facility who work on these non-
`
`payment aspects of Apple Pay, Apple Wallet, and Apple Cash. There are no such witnesses, nor
`
`any such product development, in the Waco Division.
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`Accordingly, the relative local interests favor transfer to the Austin Division. See
`
`Datascape, 2019 WL 4254069 at *3 (“the local interest factor, like all § 1404 factors, is
`
`concerned with the relative interests between the transferee and transferor forums.”); Mimedx,
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`Case 6:21-cv-00916-ADA-DTG Document 95 Filed 08/23/22 Page 19 of 21
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`
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`2014 WL 12479284, at *3 (“The ultimate outcome of this suit likely affects local San Antonio
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`interests more acutely than local Austin interests.”).
`
`3.
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`Familiarity With The Governing Law And Conflicts Of Law Are
`Neutral.
`
`The last two public interest factors are neutral. There are no perceived conflicts of law,
`
`and both Divisions are equally qualified to apply patent law. In re TS Tech USA Corp., 551 F.3d
`
`1315, 1320