Case 6:21-cv-01101-ADA Document 52 Filed 08/04/22 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`PUBLIC VERSION
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`AIRE TECHNOLOGY LTD.,
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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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`Case No. 6:21-cv-01101-ADA
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`JURY TRIAL DEMANDED
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`DEFENDANT APPLE INC.’S SEALED REPLY IN SUPPORT OF ITS
`OPPOSED MOTION TO TRANSFER VENUE UNDER 28 U.S.C. § 1404(a)
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`Case 6:21-cv-01101-ADA Document 52 Filed 08/04/22 Page 2 of 7
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`I.
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`UNDISPUTED FACTS CONFIRM NDCA IS THE GRAVITATIONAL CENTER
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`Apple’s Motion to Transfer (“Motion”) established facts critical to the transfer inquiry,
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`including: the identification of seven key Apple witnesses; over twenty important third-party
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`witnesses,
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` prior art inventors, and companies with product prior art;
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`and multiple document repositories, including source code and technical documents from both
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`Apple
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`all located in NDCA and all showing that NDCA is the gravitational center of
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`this suit. Aire spent ten weeks taking venue discovery to test those facts and the conclusions
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`drawn from them. As detailed below, Aire’s Opposition fails to rebut those facts, including with
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`any evidence developed in venue discovery. Instead, it offers mostly speculation. That Aire had
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`the opportunity to take venue discovery and is unable to rebut Apple’s evidence reinforces the
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`conclusion that NDCA is the clearly move convenient venue for this suit.
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`II.
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`THE LOCATIONS OF WILLING WITNESSES FAVORS TRANSFER
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`Aire does not dispute the importance of Apple’s seven identified witnesses, Mot. 3-4.
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`Instead, it argues that “the center of gravity of Apple employees with relevant knowledge is in
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`WDTX, not NDCA,” speculating that 27 Apple employees “potentially” possess or “appear” to
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`possess relevant information. Aire’s speculation, however, is based solely on LinkedIn profiles
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`referencing “Apple Pay.” Opp’n. 3-6. Aire’s speculation about potential relevance does not
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`outweigh Apple’s evidence of the actual relevance of the identified Apple employees.
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`As an initial matter, Aire’s reliance on only LinkedIn profiles is legally insufficient. See
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`LoganTree LP v. Apple Inc., No. 21-cv-00397-ADA, 2022 WL 1491097, at *7 (W.D. Tex. May
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`11, 2022) (finding that convenience of witnesses “based only on vague LinkedIn profiles” was
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`“owed no weight”). Aire took venue discovery yet chose not to investigate its theory about those
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`employees, including via deposition. There is no evidence that these individuals work on any
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`1
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`Case 6:21-cv-01101-ADA Document 52 Filed 08/04/22 Page 3 of 7
`Case 6:21-cv-01101-ADA Document 52 Filed 08/04/22 Page 3 of 7
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`aspect of the accused functionality, had anyrole in its design or development, or otherwise have
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`relevant information. Aire concedes as much. Opp.’n 1 (“potentially”), 11.
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`Even crediting the LinkedIn profiles, they fail to establish any nexus betweenthis suit
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`and Texas. First, this case is not about Apple Pay generally, but about the Accused Products’
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`NFCfunctionality as used with Apple Pay or NXP’s Low PowerCard Detector Mode. Compl.
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`§§ 1, 11. Many Apple employees’ work may touch on Apple Pay—which encompasses many
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`urelevant features, such as online or in-app payments, cash transfers, the GUI, etc.—butthe
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`majority, including those Aire identified, are not relevant here. As Mr. Rollins’s unrebutted
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`testimony establishes, and as confirmed bythe declarations of other Apple employees, none of
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`those Austin-based witnesses worked on the research, design, or development of the accused
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`technology. ECF 24-2 (“Rollins Decl.”), 48; ECF 36-1 through 36-8; Declaration of Michael
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`GamezIII (“Gamez Decl.”); Declaration of Daniel Ewing (“Ewing Decl.”) § 3-7; Declaration of
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`Dom Neill (“Neill Decl.”) § 3-4; Declaration of Arvind Subramanian (“Subramanian Decl.”’) § 4.
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`Second, the evidence showsthat these 27 persons are not relevantto this suit. Fifteen are
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`engineers who began work on Apple Pay or Wallet in 2020orlater, so cannot possess firsthand
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`knowledge about the Accused Functionalities’ development; Apple Pay NFC functionality was
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`introduced long before.! Ex. AA. Three are engineers whostarted their work earlier but also are
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`urelevant. E.g., Neill Decl. § 3-4 (never worked on Accused Functionality); Subramanian Decl.
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`$$)se
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`1 See ECF No. 41-01 (“Hollander Decl.”
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` Aire does not dispute that the Quality Assurance teamis relevant to the design, development,
`or operation of accused the functionality. ECF 24-2.
`410.
`and fourof the other
`engineers Aire identified
`workon that team.
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`Case 6:21-cv-01101-ADA Document 52 Filed 08/04/22 Page 4 of 7
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`business operations.? Contrary to Aire’s assertion that business operations “may be
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`knowledgeable about damages,” Opp'n,+5
`| Ewing Decl. § 3-5. Finally, three individuals
`do notfall within the above categories, but are similarly not relevant.. Sa is responsible
`foe and has nothing to do with “the benefits
`of...stor[ing] at least two applications” in Wallet. Opp’n. 3; ECF No. 41-03, 3.|
`Ca
`ooo
`BEGamez Decl. § 3-4. His knowledgeis indisputably not relevantto this suit. Jd. Finally,
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`hal Ex. V, *9-10 (describing duties of lone Austin-based individual on business
`strategy team); Ewing Decl. § 3 (same). To the extent is considered, this Court
`should consider the in NDCAon herteam. Ex. V, *9-10.
`In summary, none of these
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`27 persons has the demonstrated relevance to this suit as Apple’s seven witnesses in NDCA.
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`Separately and in addition to the above, Aire should not be permitted to rely on these 27
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`employees. Apple served venue discovery asking Aire to identify “each Personlikely to have
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`discoverable information that You may use to support Yourclaims or defenses” and Aire never
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`identified these employees, even though Aire had been“preparing is response [sic]” to Apple’s
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`Motion before venue discovery closed. Ex. X, 6-8, ECF 40 at 9. Aire should not be permitted to
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`ignore its disclosure obligations to gainatactical briefing advantage. See S. Tex. Neon Sign Co.
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`v. Ixtapa, Inc., No. L-08-0116, 2009 WL 10695795, at *2 (S.D. Tex. June 2, 2009). Nordid Aire
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`Case 6:21-cv-01101-ADA Document 52 Filed 08/04/22 Page 5 of 7
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`identify these individuals in its initial disclosures, rendering them irrelevant. Ex. W.
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`III.
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`EASE OF ACCESS TO SOURCES OF PROOF FAVOR TRANSFER
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`Aire does not dispute that Apple maintains its source code
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`pertaining to the Accused Functionality in NDCA and not in TX. Rollins Decl. ¶ 10. Aire
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`demanded production of that source code pre-fact discovery, confirming that its location in
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`NDCA is entitled to weight. Ex. AB. Aire also does not dispute that Apple’s documents and
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`source code
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`for the Accused
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`Functionality. Rollins Decl. ¶ 8, 9-12, 14-15. Aire also does not meaningfully dispute that third-
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`parties eBay, Visa, and PayPal were active in the NFC-enabled pay space at the relevant time
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`periods and so likely have evidence in N.D. Cal. Mot., 5-6.
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`In response, Aire makes three unconvincing arguments. First, Aire wrongly criticizes a
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`sentence in Mr. Rollins’ Declaration about the location of relevant documents. Opp’n. *6-7.
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`. Rollins Decl. ¶¶ 9-12; 14-15.
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`Ex. V *14. Second, Aire relies on
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`certain Apple employees in Austin, TX, who, as discussed above, are not relevant to this suit.
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`Third, Aire speculates that there may be relevant evidence in NXP’s Austin headquarters—but
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`that speculation ignores the unrebutted evidence from Apple
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` while none are in TX. Rollins Decl. ¶¶ 13;
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`ECF 24-1 (“Dachs Decl.”) ¶¶ 6, 8, 11. This is yet another area Aire ignored in venue discovery.
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`IV.
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`COMPULSORY PROCESS FAVORS TRANSFER
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`NXP is a critical third-party—as Aire’s own subpoena to NXP in the opening days of fact
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`discovery confirms—
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`4
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`Case 6:21-cv-01101-ADA Document 52 Filed 08/04/22 Page 6 of 7
`Case 6:21-cv-01101-ADA Document 52 Filed 08/04/22 Page 6 of 7
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`Di Aire’s argument that NXP’s witnesses should be ignored
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`because they are not shownto be “unwilling” ignores the law. See Jn re Hulu, LLC, 2021-142,
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`2021 WL 3278194, at *4 (Fed. Cir. Aug. 2, 2021) (“[W]here. ..multiple third-party
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`witnesses. ..[are] overwhelmingly located within the subpoena powerofonly the transferee
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`venue, this factor favors transfer even without a showing of unwillingness for each”).
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`Apple identified over 25 third-party witnesses in NDCA:La
`hma. Mohammad Khan,and the inventors of the 948 and ’115 patents.
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`Dachs Decl. 4 6, 8; Dachs Supp. Decl. § 6; Mot. 5-6. In contrast, Aire’s two priorart inventors
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`should begivenlittle weight as neither party intends to call them. Ex. W 2-4.*
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`V.
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`AIRE’S PUBLIC-INTEREST-FACTORS ARGUMENTS FALL FLAT
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`Aire’s argumentthat this Court “should not consider Apple’s headquarters in NDCA
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`separate from evidence showing where the identified Apple Pay and Wallet employees work” is
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`not supported by law. Jn re Apple Inc., 979 F.3d 1332, 1343-44 (Fed. Cir. 2020). Further, the
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`Federal Circuit has rejected consideration of the “relative speed”to trial of two districts. Jn re
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`Juniper Networks, Inc., 14 F4th 1313, 1322 (Fed. Cir. 2021). Moreover, “NDCA and WDTX
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`havehistorically had comparable timesto trial...and, most relevantly, NDCA hashistorically
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`had a shortertimeto trial for patent cases.” Jn re Apple Inc., 979 F.3d at 1343-44.
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`* Moreover, oneis an inventorofa priorart patentcited for just one limitation of the ’249 patent
`(ECF 41-33), and the otheris the third named inventoron onepriorart reference. ECF 45-35.
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`Case 6:21-cv-01101-ADA Document 52 Filed 08/04/22 Page 7 of 7
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`Dated: July 28, 2022
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`Respectfully submitted,
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`/s/ J. Stephen Ravel
`J. Stephen Ravel
`Texas State Bar No. 16584975
`KELLY HART & HALLMAN LLP
`303 Colorado, Suite 2000
`Austin, Texas 78701
`Tel: (512) 495-6429
`Email: steve.ravel@kellyhart.com
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`Attorneys for Defendant Apple Inc.
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`James R. Batchelder (pro hac vice)
`Andrew N. Thomases (admitted in W.D.
`Tex.)
`Andrew T. Radsch (pro hac vice)
`Daniel W. Richards (pro hac vice)
`ROPES & GRAY LLP
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303
`Tel: (650) 617-4000
`Fax: (650) 617-4090
`Email: James.batchelder@ropesgray.com
`Email: Andrew.thomases@ropesgray.com
`Email: Andrew.radsch@ropesgray.com
`Email: Daniel.richards@ropesgray.com
`
`Cassandra B. Roth (pro hac vice)
`ROPES & GRAY LLP
`1211 Avenue of the Americas
`New York, NY 10036-8704
`Tel: (212) 596-9000
`Fax: (212) 596-9090
`Email: Cassandra.roth@ropesgray.com
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record are being served with a copy of the foregoing
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`document via electronic mail on July 28, 2022.
`
`/s/ J. Stephen Ravel
`J. Stephen Ravel
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`6
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