Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 1 of 20
`PUBLIC VERSION
`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`AIRE TECHNOLOGY LTD.,
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`
`- ADA
`Case No. 6:21-cv-01101
`
`JURY TRIAL DEMANDED
`
`DEFENDANT APPLE INC.’S SEALED OPPOSED MOTION TO TRANSFER VENUE
`UNDER 28 U.S.C. § 1404(a)
`
`

`

`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 2 of 20
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`
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`INTRODUCTION .............................................................................................................. 1
`
`FACTUAL BACKGROUND ............................................................................................. 2
`
`
`
`
`
`
`
`
`
`
`
`This Lawsuit, The Asserted Patents, And The Accused Products .......................... 2
`
`Aire Has No Connection To The Western District Of Texas ................................. 2
`
`Apple’s Witnesses And Documents Are In The Northern District Of
`California, And Not In The Western District Of Texas .......................................... 3
`
`Relevant Nonparty Witnesses Are In The Northern District Of California ............ 4
`
`Google And Samsung, Defendants In The Co-Pending Cases Filed By
`Aire In This District, Are Also Moving to Transfer To N.D. Cal. ......................... 6
`
`APPLICABLE LAW .......................................................................................................... 6
`
`THIS ACTION COULD HAVE BEEN BROUGHT IN THE NORTHERN
`DISTRICT OF CALIFORNIA ........................................................................................... 7
`
`THE NORTHERN DISTRICT OF CALIFORNIA IS CLEARLY MORE
`CONVENIENT ................................................................................................................... 7
`
`A.
`
`The Private Interest Factors Weigh Decisively In Favor Of Transfer .................... 7
`
`1.
`
`2.
`
`3.
`
`4.
`
`Relative ease of access to sources of proof strongly favors transfer .......... 7
`
`The availability of compulsory process strongly favors transfer .............. 10
`
`Cost of attendance for willing witnesses strongly favors transfer ............ 11
`
`All other practical problems are neutral .................................................... 13
`
`B.
`
`Public Interest Factors Weigh In Favor Of Transfer ............................................ 14
`
`1.
`
`2.
`
`3.
`
`Administrative difficulties considerations are neutral, at minimum ......... 14
`
`Having localized interests decided at home strongly favors transfer ....... 14
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`Familiarity with governing law and conflicts of law are neutral .............. 15
`
`VI.
`
`CONCLUSION ................................................................................................................. 15
`
`
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`
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`
`
`i
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`

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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 3 of 20
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`
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`Cases
`
`In re Adobe Inc.,
`823 F. App’x 929 (Fed. Cir. 2020) ..........................................................................................14
`
`Aire Tech. Ltd. v. Google LLC,
`No. 6:21-cv-01104, ECF No. 30 (W.D. Tex. Mar. 14, 2022) ....................................................6
`
`Aire Tech. Ltd. v. Samsung Elecs. Co., Ltd.,
`No. 6:21-cv-00955, ECF No. 24 (W.D. Tex. Mar. 21, 2022) ....................................................6
`
`In re Apple Inc.,
`818 F. App’x 1001 (Fed. Cir. 2020) ..........................................................................................7
`
`In re Apple Inc.,
`979 F.3d 1332 (Fed. Cir. 2020)........................................................................................ passim
`
`In re Apple Inc.,
`No 2021-181, 2021 WL 5291804 (Fed. Cir. Nov. 25, 2021) ..................................9, 11, 12, 15
`
`In re Apple, Inc.,
`581 F. App’x 886 (Fed. Cir. 2014) ..........................................................................................11
`
`BillJCo LLC v. Apple Inc.,
`No. 6:21-cv-00528, ECF No. 53 (W.D. Tex. Feb. 24, 2022) ..................................................11
`
`In re Cray Inc.,
`871 F.3d 1355 (Fed. Cir. 2017)..................................................................................................7
`
`Cub Club Inv., LLC v. Apple, Inc.,
`No. 6:20-cv-00856-ADA, ECF. No. 28 (W.D. Tex. Sept. 7, 2021) ........................................10
`
`DataQuill, Ltd. v. Apple, Inc.,
`No. A-13-CA-706, 2014 WL 2722201 (W.D. Tex. June 13, 2014) ......................................8, 9
`
`In re Dish Network,
`856 F. App’x 310 (Fed. Cir. 2021) ..........................................................................................13
`
`In re DISH Network LLC,
`No. 2021-182, 2021 WL 4911981 (Fed. Cir. Oct. 21, 2021)...................................................15
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)................................................................................................10
`
`In re Google LLC,
`2021-170, 2021 WL 4427899 (Fed. Cir. Sept. 27, 2021) ........................................................12
`
`ii
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`

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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 4 of 20
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`
`
`In re Google LLC,
`No. 2021-171, 2021 WL 4592280 (Fed. Cir. Oct. 6, 2021).......................................................8
`
`In re HP Inc.,
`826 F. App’x 899 (Fed. Cir. 2020) ............................................................................................7
`
`In re Hulu, LLC,
`No. 2021-142, 2021 WL 3278194 (Fed. Cir. 2021) ....................................................10, 11, 14
`
`In re Juniper Networks, Inc.,
`14 F.4th 1313 (Fed. Cir. 2021) ........................................................................................ passim
`
`In re Juniper Networks, Inc.,
`No. 2021-156, 2021 WL 4519889 (Fed. Cir. Oct. 4, 2021).......................................................7
`
`In re Pandora Media, LLC,
`No. 2021-172, 2021 WL 4772805 (Fed. Cir. Oct. 13, 2021)...................................................10
`
`In re Samsung Elecs. Co.,
`2 F.4th 1371 (Fed. Cir. 2021) ....................................................................................2, 9, 13, 15
`
`In re TracFone Wireless, Inc.,
`848 F. App’x 899 (Fed. Cir. 2021) ..........................................................................................13
`
`In re TS Tech. USA Corp.,
`551 F.3d 1315 (Fed. Cir. 2008)................................................................................................15
`
`VLSI Tech. LLC v. Intel Corp.,
`No. 6:19-cv-00254-ADA, 2019 WL 8013949 (W.D. Tex. Oct. 7, 2019) ..................................9
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) ...............................................................................................7, 12
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) .............................................................................................6, 7, 8
`
`XY, LLC v. Trans Ova Genetics, LC,
`No. W-16-CA-447, 2017 WL 5505340 (W.D. Tex. Apr. 5, 2017) ...........................................8
`
`Statutes
`
`28 U.S.C. § 1400(b) .........................................................................................................................7
`
`28 U.S.C. § 1404(a) ...............................................................................................................1, 6, 12
`
`Other Authorities
`
`Fed. R. Civ. P. 45(c) ......................................................................................................................10
`
`iii
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`

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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 5 of 20
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`
`
`I.
`
`INTRODUCTION
`
`This suit has no relevant connection to the Western District of Texas (“W.D. Tex.”), and
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`has significant connections to the Northern District of California (“N.D. Cal.”). Accordingly,
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`Defendant Apple Inc. (“Apple”) seeks transfer to N.D. Cal. under 28 U.S.C. § 1404(a) for the
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`“convenience of parties and witnesses, in the interest of justice.”
`
`Other than this litigation, Plaintiff Aire Technology Ltd. (“Aire”) appears to have no
`
`connection to Texas. Aire, an Irish holding company, does not appear to have a U.S. presence
`
`nor is it registered to do business in Texas and, just one month before filing suit, acquired the
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`Asserted Patents from a German company that also appears to have no connection to Texas.
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`Aire has identified no witnesses, custodians, or records of its own (or of the original patentee) in
`
`Texas or the U.S. The only connection that Aire has identified between this suit and W.D. Tex.
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`are legally irrelevant facilities (e.g., Apple retail stores selling the accused products) or
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`speculation about legally irrelevant hiring plans (e.g., an Apple job posting with no relationship
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`to the accused technology) in Texas. But these “general contacts . . . that are untethered to the
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`lawsuit” and common across districts are of no moment—the § 1404 inquiry concerns only any
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`“significant connections between a particular venue and the events that gave rise to a suit.” In re
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`Apple Inc., 979 F.3d 1332, 1345 (Fed. Cir. 2020) (“Apple III”) (emphasis in original).
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`Here, the relevant “events” demonstrate a “significant connection” to N.D. Cal. Apple’s
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`headquarters are in N.D. Cal, and its relevant technical and non-technical witnesses and records
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`are overwhelmingly in N.D. Cal., while none are in Texas.
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`. Even at this preliminary
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`stage, Apple also has identified three additional third-party entities and eight prior art inventors
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`1
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`

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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 6 of 20
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`
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`in N.D. Cal., all likely having knowledge of relevant prior art technology. “[E]ven if not all [of
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`these] witnesses testify, with nothing on the other side of the ledger,” these N.D. Cal. witnesses
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`“strongly favor[] transfer.” In re Samsung Elecs. Co., 2 F.4th 1371, 1379-80 (Fed. Cir. 2021).
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`The center of gravity in this case clearly is in N.D. Cal. The Court should transfer this
`
`case to that appropriate and far more convenient venue.
`
`II.
`
`FACTUAL BACKGROUND
`
`This Lawsuit, The Asserted Patents, And The Accused Products
`
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`Aire alleges that Apple Pay features (“Accused Technology”) on the iPhone and the
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`Apple Watch (the “Accused Products”) infringe three patents.1 See ECF No. 1, (“Compl.”) ¶¶ 1,
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`10-11. The Asserted Patents allegedly address “[NFC] and secure digital payment solutions.”
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`Id. ¶ 1. According to Aire, the NFC capabilities used by the Accused Technology (“Accused
`
`NFC Functionality”) are implemented by a chip provided by third-party NXP. Id. ¶¶ 16, 38, 39
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`(identifying “NXP SN210V NFC controller and Secure Element”).
`
`Aire Has No Connection To The Western District Of Texas
`
`
`Aire, which is organized and operates in Dublin, Ireland, does not allege or establish any
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`connection to or interest in W.D. Tex. See id. ¶ 2. Aire is not registered to do business in the
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`State of Texas. Ex. A2 Nor does Aire allege that it was involved in the Asserted Patents’
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`development. Rather, German company Giesecke & Devrient GmbH was the original assignee
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`of the Asserted Patents (Compl. Exs. 1-3), and it assigned those patents to Aire in September
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`2021, just one month before Aire filed this suit. Ex. B. Aire has not identified any relevant
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`witnesses, documents, or evidence in the State of Texas, let alone in W.D. Tex.
`
`
`1 Aire specifically identifies the iPhone 6 (and subsequent generations) and the Watch Series 1
`(and subsequent generations). See Compl. ¶¶ 1, 10-11.
`2 All exhibits are to the Declaration of Cassandra Roth, unless otherwise indicated.
`
`2
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`

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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 7 of 20
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`Apple’s Witnesses And Documents Are In The Northern District Of
`California, And Not In The Western District Of Texas
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`Apple is a California corporation headquartered in Cupertino, CA since 1976. Decl. of
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` ¶ 3 (
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`Decl.”). Apple employs more than
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` people who work in or
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`around its headquarters. Id. Although Apple sells its products throughout the U.S.,
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`
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` Id. ¶ 8. Neither Apple’s retail presence in Texas nor its Austin facilities house
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`employees or records relevant to this litigation. Id. ¶ 18.3
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`Apple’s technical and likely trial witnesses are located in N.D. Cal. Specifically, the
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`Apple employees who
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` will be able to explain the Accused Technology
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`to the jury are in N.D. Cal. Id. ¶ 9-12. Because Aire’s infringement allegations focus on Apple
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`Pay NFC functionality, Apple engineers familiar with Apple’s device-side and Secure Element-
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`side source code are critical. Nearly all of these critical Apple engineers are in N.D. Cal.
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`(
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`•
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`•
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`•
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` Decl. ¶ 8):
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`works and resides in N.D. Cal. and no one on his team works in Texas. Id. ¶ 10.
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`
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` he
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`and reside in N.D. Cal., with a few individuals in
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`¶ 9.
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`Id. ¶ 9. They work
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`. Id.
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`
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`3 Aire’s Complaint identified two positions advertised by Apple in Austin, TX. Compl. ¶ 7 n.2.
`Neither concerns the accused functionality.
` Decl. ¶¶ 7, 10.
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`3
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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 8 of 20
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`. Id. ¶ 12.
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` Id. ¶ 12. His team works and
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`resides in N.D. Cal., except for one person in
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`and one in
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`. Id. ¶ 12.
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`•
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` Id. ¶ 11.
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`works and resides in
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`N.D. Cal. and no one on his team works in Texas. Id. ¶ 11.
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`Apple’s other likely Apple employee trial witnesses also are located in N.D. Cal. For example:
`
`•
`
`•
`
`•
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` is knowledgeable about Apple’s financial records and data.
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`Id. ¶ 16.
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` and his team work and reside in N.D. Cal. Id. ¶ 16.
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` and his team work and
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`reside in N.D. Cal. with a handful of individuals in
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`
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`. Id. ¶ 14. His team spearheads Apple’s marketing initiatives. Id. ¶ 14.
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` and her team work and
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`reside in N.D. Cal., except for two persons in
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`. Id. ¶ 15. She and her colleagues are
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`responsible for patent licensing. Id. ¶ 15.
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`None of the above employees, nor their team members, work with any individuals
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`located in Texas in connection with their work on the accused functionality.4 Id. ¶ 9-16.
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`Relevant Nonparty Witnesses Are In The Northern District Of California
`
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`Relevant third-party witnesses also are located in N.D. Cal.
`
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`4 Apple has five retail stores and two nonretail offices in W.D. Tex., but none of the employees at
`those facilities has knowledge relevant to this litigation and all of Apple’s relevant documents
`identified to date are in or accessed from N.D. Cal.
` Decl. ¶ 18. No W.D. Tex. employee
`has any responsibility for the design, development, implementation, or marketing of the Accused
`Technology or is likely to have unique documents or information relevant to this case. Id. ¶ 18.
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`4
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`

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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 9 of 20
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`NXP. Apple’s likely trial witnesses from NXP are located in N.D. Cal.
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`.
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` Decl. ¶ 7.
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`Id.
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`Other key third parties. Other early players in NFC technology also are located in N.D.
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`Cal., and Apple expects that they will have potentially invalidating prior art. Specifically, Visa
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`and eBay, both headquartered in N.D. Cal., were early players in NFC and may have evidence
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`relevant to invalidity of the Asserted Patents. Exs. D-H. For example, Apple has identified U.S.
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`Patent No. 7,827,115 (“the ’115 Patent”), entitled “Online Payer Authentication Service,”
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`assigned to Visa, with a priority date of April 24, 2000, as potentially invalidating prior art.
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`Ex. D. The ’115 patent lists no TX inventors; instead three (Kevin Weller, Tony Lewis and Ben
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`Dominguez) currently reside in N.D. Cal. Exs. D-E, I-K. Additionally, eBay, Inc. filed, and
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`later assigned to California-based PayPal, Inc., a patent application, U.S. Patent Publication
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`No. 2006/0229998, on March 31, 2005, entitled “Payment Via Financial Service Provider Using
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`5
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`

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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 10 of 20
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`Network-Based Device,” listing two inventors located in N.D. Cal. Exs. E-F, L-M.
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`Additionally, Apple’s preliminary investigation identified U.S. Patent No. 6,150,948 and
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`PCT Publication No. 00/52866 as prior art. Two of the listed inventors, Ynijun Wang and Randy
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`Watkins, are listed as located in California on the face of the patents, while none of the inventors
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`is located in Texas. Exs. N, O. Furthermore,
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`As early innovators, the aforementioned entities and individuals may
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`also have knowledge of the state of the art as of the priority dates, including knowledge of
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`relevant prior art systems and/or related unpublished or unpatented documents.
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`
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`Google And Samsung, Defendants In The Co-Pending Cases Filed By Aire In
`This District, Are Also Moving to Transfer To N.D. Cal.
`
`Aire also sued Google LLC and Samsung Electronics Co. in this district in October and
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`September 2021, respectively, asserting the Asserted Patents and another patent. Both moved to
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`transfer to N.D. Cal based on those suits’ similar lack of relevant contacts to W.D. Tex. See Aire
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`Tech. Ltd. v. Google LLC, No. 6:21-cv-01104, ECF No. 30 (W.D. Tex. Mar. 14, 2022); Aire
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`Tech. Ltd. v. Samsung Elecs. Co., Ltd., No. 6:21-cv-00955, ECF No. 24 (W.D. Tex. Mar. 21,
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`2022).
`
`III. APPLICABLE LAW
`A defendant is entitled to transfer under 28 U.S.C. § 1404(a) if it shows (1) that the suit
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`“might have been brought” in the proposed transferee district and (2) the “transferee venue is
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`clearly more convenient” than the district in which suit was filed. In re Volkswagen of Am., Inc.,
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`545 F.3d 304, 312-15 (5th Cir. 2008) (“Volkswagen II”). In determining relative “convenience,”
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`courts weigh the “private” and “public” interest factors. Id. at 315. The weighing of the factors
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`“reflects the appropriate deference to which the plaintiff’s choice of venue is entitled.” Id.
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`6
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`

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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 11 of 20
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`The private factors are: “(1) relative ease of access to sources of proof; (2) availability of
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`compulsory process to secure the attendance of witnesses; (3) cost of attendance for willing
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`witnesses; and (4) all other practical problems that make trial of a case easy, expeditious, and
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`inexpensive.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”). The
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`public factors are: “(1) administrative difficulties flowing from court congestion; (2) the local
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`interest in having localized interests decided at home; (3) familiarity of the forum with the law
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`that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws or in
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`the application of foreign law.” Id. Of these factors, the “convenience of the witnesses is
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`probably the single most important.” In re Apple Inc., 818 F. App’x 1001, 1003 (Fed. Cir. 2020)
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`(citation and internal quotation marks omitted) (“Apple I”).
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`On balance, courts should look to where the action’s “center of gravity” is. In re Juniper
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`Networks, Inc., No. 2021-156, 2021 WL 4519889, at *3 (Fed. Cir. Oct. 4, 2021) (“Juniper I”).
`
`The transferee venue is clearly more convenient when it is the defendant’s home and the plaintiff
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`has no ties to the transferor forum. In re HP Inc., 826 F. App’x 899, 904 (Fed. Cir. 2020).
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`IV.
`
`THIS ACTION COULD HAVE BEEN BROUGHT IN THE NORTHERN
`DISTRICT OF CALIFORNIA
`
`Because Apple is a California corporation headquartered in N.D. Cal., this suit could
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`have been brought in that district. See Volkswagen II, 545 F.3d at 312-13; see also 28 U.S.C.
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`§ 1400(b); In re Cray Inc., 871 F.3d 1355, 1360 (Fed. Cir. 2017);
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`Decl. ¶ 3.
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`V.
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`THE NORTHERN DISTRICT OF CALIFORNIA IS CLEARLY MORE
`CONVENIENT
`
`A.
`
`The Private Interest Factors Weigh Decisively In Favor Of Transfer
`
`Relative ease of access to sources of proof strongly favors transfer
`
`1.
`The relative ease of access to sources of proof strongly favors transfer: Apple’s source
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`code and documentary evidence (and custodians of the same) are in N.D. Cal., while neither
`
`7
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`

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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 12 of 20
`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 12 of 20
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`Apple nor Aire has relevant custodians or documents in this District. The Fifth Circuit has
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`“reiterated that the sources of proof requirement is a meaningful factor in the analysis.”
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`VolkswagenIT, 545 F.3d at 316 (cited by Jn re Google LLC, No. 2021-171, 2021 WL 4592280,
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`at *7 (Fed. Cir. Oct. 6, 2021)). “In patent infringementcases, the bulk of the relevant evidence
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`usually comes from the accused infringer. Consequently, the place where the defendant’s
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`documents are kept weighs in favorof transfer to that location.” Apple II, 979 F.3d at 1339-40;
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`see DataQuill, Ltd. v. Apple, Inc., No. A-13-CA-706, 2014 WL 2722201, at *3 (W.D. Tex. June
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`13, 2014) (the “location of the [accused infringer’s] documents tends to be the more convenient
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`venue’). In weighingthis factor, “the Court will look to the location where the allegedly
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`infringing products were researched, designed, developed and tested.” XY, LLC v. Trans Ova
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`Genetics, LC, No. W-16-CA-447, 2017 WL 5505340,at *13 (W.D. Tex. Apr. 5, 2017).
`
`Here, Apple’s sources of proof overwhelmingly are in N.D. Cal. Apple is headquartered
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`in N.D. Cal. and maintains the majority of its documents and source code in N.D. Cal., whereits
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`relevant document custodiansare located. a Decl. § 3, 8. More specifically, the Accused
`Technology wasPo in Cupertino, andall ofthe related documents
`a...
`generated—and are currently accessible from—N.D. Cal. Jd. ¥ 8.Po
`eS : :1)
`ES 12 sivite'y. ee prin
`eecox Apple related to the Accused Technology also
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`occur in N.D. Cal. Jd. §§ 3,8. Accordingly, Apple’s businessrecords relating to those
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`SScis, for xaIIoe located in ND.
`
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`Cal. Id. §§ 3, 8. That this wealth of evidence exists in N.D. Cal. is “unsurprising”’—the Accused
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`

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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 13 of 20
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`
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`Technology and application were
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`in that District. In re
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`Samsung Elecs. Co., 2 F.4th 1371, 1379-80 (Fed. Cir. 2021); see DataQuill, 2014 WL 2722201,
`
`at *3 (because Apple designed the accused products at its headquarters, “documents relevant to
`
`the development and creation of Apple’s products are likely to be found” there).
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`Moreover, Apple has greater ease of access to documents in N.D. Cal. because its N.D.
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`Cal. employees have the credentials required to access relevant electronically stored documents,
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`while its Austin, TX-based employees do not. Id. ¶ 8-12; 14-18; see In re Apple Inc., No 2021-
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`181, 2021 WL 5291804, at *2 (Fed. Cir. Nov. 25, 2021) (“Apple II”) (finding factor favors
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`transfer where “essentially all of [an accused infringer’s] source code and documentary
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`evidence” were in the transferee district, regardless of whether the accused infringer could
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`theoretically give remote access to otherwise-irrelevant employees in the transferor district).
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`By contrast, Aire is a European entity that likely has few sources of proof at all—let
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`alone any in W.D. Tex. See Compl. ¶ 2. Aire does not appear to conduct any significant
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`business activities and therefore is not likely to have many documents. Moreover, Aire acquired
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`the Asserted Patents just over a month before filing this action, Ex. B, and does not operate in
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`Texas. Ex. A. Crucially, none of the Complaint’s allegations is tethered to W.D. Tex.
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`Finally, the identified potential sources of proof in the possession of third-parties eBay,
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`PayPal, Visa, and NXP would likely be located in N.D. Cal., weighing in favor of transfer. See
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`infra § II.E; Exs. D-H, N;
`
` Decl. ¶¶ 6-7; VLSI Tech. LLC v. Intel Corp., No. 6:19-cv-
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`00254-ADA, 2019 WL 8013949, at *3-4 (W.D. Tex. Oct. 7, 2019) (noting that third-party
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`sources of proof are relevant).
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`Accordingly, the wealth of important information in N.D. Cal. “turns this factor in favor
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`of transfer.” See Apple III, 979 F.3d at 1340 (holding it was error not to “meaningfully consider”
`
`9
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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 14 of 20
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`Apple’s “significant amount of relevant information in NDCA, including the relevant source
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`code, Apple records relating to the research and design of the accused products, and marketing,
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`sales, and financial information for the accused products”); Cub Club Inv., LLC v. Apple, Inc.,
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`No. 6:20-cv-00856-ADA, ECF No. 28, at 6 (W.D. Tex. Sept. 7, 2021) (“Given (1) that Apple
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`resides in [N.D. Cal.] and (2) that the accused features were apparently developed at Apple’s
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`offices in California, the Court here finds this factor weighs in favor of transfer to NDCA.”).
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`The availability of compulsory process strongly favors transfer
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`2.
`The compulsory process factor strongly favors transfer because N.D. Cal. will have
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`absolute subpoena power over key NXP employees, as well as potential prior art inventors, and
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`no identified witnesses require compulsory process in W.D. Tex. See Fed. R. Civ. P. 45(c)
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`(limiting compulsory process of non-party witnesses to “100 miles of” or “the state where” the
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`person resides, works, or regularly transacts business in person). When a substantial number of
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`witnesses reside in the transferee forum, and none resides in the transferor forum, this factor
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`strongly supports transfer. In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009). A
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`movant need not show that a witness is unwilling to testify when (as here) third-party witnesses
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`are overwhelmingly in the transferee district or there is no indication of a particular witness’s
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`unwillingness. In re Pandora Media, LLC, No. 2021-172, 2021 WL 4772805, at *3 (Fed. Cir.
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`Oct. 13, 2021); In re Hulu, LLC, No. 2021-142, 2021 WL 3278194, at *4 (Fed. Cir. 2021).
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`Here, the relevant third-party witnesses are in N.D. Cal., well outside this District’s
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`compulsory power. Aire premises its infringement allegations in significant part on features
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`implemented by NXP’s NFC chips.
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`.
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` Decl. ¶¶ 6-8, 11.
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`Additionally, as set forth supra § II.E, at least seven prior art inventors, and one
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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 15 of 20
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`individual knowledgeable about prior art systems, are in N.D. Cal., while no identified third-
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`party witnesses reside in W.D. Tex.5 At least four of the five inventors of the Asserted Patents
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`live in Europe, and the fifth appears to, so they are not subject to W.D. Tex.’s compulsory
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`process. Exs. Q-U. No prior art references identified to date name W.D. Tex.-based inventors
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`on their face, and Apple is unaware of any other likely third-party witnesses in W.D. Tex.
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`In sum, this factor strongly favors transfer because “more third-party witnesses reside
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`within the transferee venue than reside in the transferor venue.” In re Apple, Inc., 581 F. App’x
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`886, 889 (Fed. Cir. 2014) (“Apple IV”). This factor is near dispositive when, as here, the
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`identified and relevant potential “third-party witnesses … [are] overwhelmingly located within
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`the subpoena power of only the transferee venue.” Hulu, 2021 WL 3278194, at *4.
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`Cost of attendance for willing witnesses strongly favors transfer
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`3.
`The convenience and cost of attendance of witnesses is the most important factor, and
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`this consideration is no less important for party witnesses In re Juniper Networks, Inc., 14 F.4th
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`1313, 1319-20 (Fed. Cir. 2021) (“Juniper II”) (“[T]he convenience-to-the-witness factor is [not]
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`attenuated when the witnesses are employees of the party calling them.”). This factor weighs
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`strongly in favor of transfer “when there are several witnesses located in the transferee forum
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`and none in the transferor forum,” as here. See Apple II, 2021 WL 5291804, at *3.
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`All of Apple’s relevant witnesses are in N.D. Cal. and would be required to travel 1,500
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`miles to testify in W.D. Tex.6 Ex. U; see supra § II.C, II.D. These witnesses, including Apple’s
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` for the accused functionality in N.D. Cal., will be key to Apple’s presentation
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`5 See infra § II.D, identifying Kevin Weller, Tony Lewis, Ben Dominguez, Mark Harrison,
`Mauria Finley, Ynijun Wang and Randy Watkins as potential prior art witnesses in CA. Exs. I-O.
`6 Unlike in BillJCo, LLC, (1) all relevant Apple witnesses are in N.D. Cal; (2) no Plaintiff
`witnesses are in TX; and (3) Apple identified third party witnesses in N.D. Cal. See BillJCo LLC
`v. Apple Inc., No. 6:21-cv-00528, ECF. No. 53 (W.D. Tex. Feb. 24, 2022).
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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 16 of 20
`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 16 of 20
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`and defenses, including for non-infringement and damages issues, such as apportionment.’
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`a Decl. § 3, 8-12, 14-16; supra § ILD. Relevant and likely witnesses also include Apple’s
`Po teams located in N.D. Cal., including for Apple’s refutation of
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`Aire’s damages case and indirect infringement claims. Jd. §J 3, 14-16.
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`The inconvenienceofa trial in this District is not diminished because these individuals
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`are employees of Apple. If transfer were denied, they would experience substantial expense and
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`disruption in their professional and personallives, resulting in the precise inconveniences
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`§ 1404(a) was designed to remedy. See Apple II, 2021 WL 5291804,at *3; VolkswagenI, 371
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`F.3d at 204-05; JuniperIT, 14 F.4th at 1319-20 (concludingthe district court erred in attaching
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`“little weight to the evidence regarding the party witnesses”). Apple is not currently building a
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`hotel in W.D.Tex.,ee GEDec. 416. Ifthis case
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`werelitigated in N.D. Cal., in contrast, those employees would be required to drive only a short
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`distance to a courthouse.
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`This factor further strongly favors transfer as Aire has not identified a single witness,
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`party or otherwise, in W.D. Tex. See Apple IT, 2021 WL 5291804,at *3 (concludingthat this
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`factor weighs strongly in favor of transfer “when there are several witnesses located in the
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`transferee forum and nonein the transferor forum’); see also Apple III, 979 F.3d at 1342.
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`Moreover, Aire’s party witnesses presumablyare in Ireland, and are thus immaterial. “[W]hen
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`there are numerous witnesses in the transferee venue and the only other witnesses are far outside
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`the plaintiff's chosen forum, the witness-convenience factor favors transfer.” Jn re Google LLC,
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`2021-170, 2021 WL 4427899,at *4 (Fed. Cir. Sept. 27, 2021); see also Apple III, 979 F.3d at
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`7 See Supra§ILC,identifyin
`, as Well as their respective teams.
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`Case 6:21-cv-01101-ADA Document 28 Filed 04/21/22 Page 17 of 20
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`1341 (concluding that the proportional distance is less important where the witnesses will be
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`required to travel a significant distance for either forum).
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`Ultimately, Apple has identified a significant number of witnesses in N.D. Cal., and the
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`convenience of each such witness must be considered. See Juniper II, 14 F. 4th at 1319-20 (a
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`district court may not discount the convenience of a witness based on a “categorical assumption”
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`regarding his or her likelihood of testifying). Regardless, “even if not all [of these] witnesses
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`testify, with nothing on the other side of the ledger,” the identified N.D. Cal-located witnesses
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`“strongly favor[] transfer.” Samsung, 2 F.4th at 1379.
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`All other practical problems are neutral
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`4.
`The “practical problems” catch-all factor is neutral because no relevant “problems” of
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`judicial economy exist. Case progress since Aire’s filing of the Complaint, of which there has
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`been little, is irrelevant to this analysis. See In re TracFone Wireless, Inc., 848 F. App’x 899,
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`900 (Fed. Cir. 2021) (“[P]rogress of the case since the filing of the complaint is irrelevant when
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`considering the transfer motion and should not color [a district court’s] decision.”).
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`Further, Aire’s pending lawsuits in this District against Google and Samsung are entitled
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`to no weight because those lawsuits are subject to motions to transfer to N.D. Cal. As the
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`Federal Circuit has explained, a court may not “weigh the judicial economy factor in a plaintiff’s
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`favor solely based on the existence of multiple co-pending suits, while the remaining defendants
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`have similar transfer motions pending seeking transfer to a common transferee district.”
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`Google2017 WL 977038, at *2-3.