Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 1 of 21
`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`SPEIR TECHNOLOGIES LTD.,
`
`Plaintiff, ,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`
`Case No. 6:22-cv-00077 (ADA)
`
`JURY TRIAL DEMANDED
`
`PUBLIC VERSION
`
`DEFENDANT APPLE INC.’S SEALED OPPOSED MOTION TO TRANSFER VENUE
`UNDER 28 U.S.C. § 1404(a)
`
`

`

`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 2 of 21
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`III.
`
`IV.
`
`INTRODUCTION .............................................................................................................. 1
`
`FACTUAL BACKGROUND ............................................................................................. 2
`
`A.
`
`B.
`
`C.
`
`Speir Has No Connection To The Western District of Texas ................................. 2
`
`This Lawsuit and The Asserted Patents .................................................................. 2
`
`The Overwhelming Majority of Apple’s Likely Witnesses and Documents
`Are In The Northern District of California ............................................................. 3
`
`1.
`
`2.
`
`Apple’s N.D. Cal. Sources of Proof ............................................................ 3
`
`Apple’s Limited Sources of Proof in Austin............................................... 5
`
`D.
`
`Relevant Nonparty Witnesses Are Also in California ............................................ 6
`
`APPLICABLE LAW .......................................................................................................... 6
`
`THIS ACTION SHOULD BE TRANSFERRED TO THE NORTHERN
`DISTRICT OF CALIFORNIA—THE CLEARLY MORE CONVENIENT
`VENUE ............................................................................................................................... 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
`
`Compulsory process over third-party witnesses favors transfer to
`N.D. Cal. ................................................................................................... 10
`
`Cost of attendance for willing witnesses favors transfer .......................... 11
`
`Any remaining “practical problems” are neutral ...................................... 12
`
`B.
`
`Public Interest Factors Weigh In Favor of Transfer ............................................. 13
`
`1.
`
`2.
`
`3.
`
`The court congestion factor is neutral ....................................................... 13
`
`The local interest factor favors transfer .................................................... 13
`
`Familiarity with governing law and conflicts of law factors are
`neutral ....................................................................................................... 14
`
`V.
`
`VI.
`
`IN THE ALTERNATIVE, THIS ACTION SHOULD BE TRANSFERRED TO
`THE AUSTIN DIVISION ................................................................................................ 14
`
`CONCLUSION ................................................................................................................. 15
`i
`
`

`

`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 3 of 21
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Page(s)
`
`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. 6:20-cv-00505-ADA, 2021 WL 5291804 (W.D. Tex. Nov. 15, 2021) ................11, 12, 14
`
`In re Apple, Inc.,
`581 F. App’x 886 (Fed. Cir. 2014) ..........................................................................................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, LLC,
`No. 2021-182, 2021 WL 4911981 (Fed. Cir. Oct. 21, 2021).............................................13, 14
`
`Fintiv, Inc. v. Apple Inc.,
`No. 6:18-cv-00926-ADA, 2019 WL 4743678 (W.D. Tex. Sept. 13, 2019) ............................15
`
`Freshub, Inc. v. Amazon.com Inc.,
`No. 19-cv-388-ADA, 2019 WL 10856832 (W.D. Tex. Sept. 9, 2019) ...................................12
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)................................................................................................10
`
`In re Google LLC,
`No. 2021-178, 2021 WL 5292267 (Fed. Cir. Nov. 15, 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) ................................................................11
`
`Identity Security LLC v. Apple Inc.,
`No. 1:22-cv-00058, Dkt. No. 59 (W.D. Tex. Jan. 25, 2022) ...................................................15
`
`ii
`
`

`

`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 4 of 21
`
`In re Juniper Networks, Inc.,
`14 F.4th 1313 (Fed. Cir. 2021) ..............................................................................11, 12, 13, 14
`
`In re Jupiter Networks, Inc.,
`No. 2021-156, 2021 WL 4519889 (Fed. Cir. Oct. 4, 2021)...................................................1, 7
`
`Logantree LP v. Apple Inc.,
`No. 6:21-cv-00397-ADA, 2022 WL 1491097 (W.D. Tex. May 11, 2022) .........................9, 13
`
`In re Pandora Media, LLC,
`No. 2021-172, 2021 WL 4772805 (Fed. Cir. Oct. 13, 2021)...................................................10
`
`In re Radmax, Ltd.,
`720 F.3d 285 (5th Cir. 2013) ...................................................................................................15
`
`In re Samsung Elecs. Co.,
`2 F.4th 1371 (Fed. Cir. 2021) ........................................................................................9, 12, 14
`
`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) ................................10
`
`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
`
`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. 12(b)(6)....................................................................................................................3
`
`Fed. R. Civ. P. 45(c) ......................................................................................................................10
`
`iii
`
`

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`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 5 of 21
`
`I.
`
`INTRODUCTION
`
`
`
`Plaintiff Speir Technologies Ltd. (“Speir”) filed this suit against Apple Inc. (“Apple”) on
`
`January 20, 2022, in the Western District of Texas (“W.D. Tex.”), Waco Division. But neither
`
`Speir nor this case has any connection to Waco, Texas. Speir is an Irish holding company. It is
`
`not registered to do business in Texas and does not have a U.S. presence. Moreover, Speir has
`
`not identified any witnesses, custodians, or records of its own (or of L3Harris Technologies, Inc.,
`
`the original patentee) in Texas. Rather, the relevant facts demonstrate a significant connection to
`
`the Northern District of California (“N.D. Cal.”). Defendant Apple Inc.’s (“Apple”)
`
`headquarters are in N.D. Cal., its relevant non-technical witnesses are all in N.D. Cal., and its
`
`technical witnesses and records are overwhelmingly located in N.D. Cal.
`
`Specifically, Speir’s allegations implicate four distinct technologies in Apple’s products:
`
`(1) 5G; (2) Precision Finding; (3) TouchID and FaceID; and (4) the Secure Enclave.
`
`
`
`
`
`
`
`. Accordingly, Apple respectfully requests transfer under 28
`
`U.S.C. § 1404(a) because “the center of gravity of this action is clearly in the Northern District
`
`of California”—not the Western District of Texas. In re Jupiter Networks, Inc., No. 2021-156,
`
`2021 WL 4519889, at *3 (Fed. Cir. Oct. 4, 2021) (“Juniper I”).
`
`To the extent this suit has any connection to Texas, it is to the Austin Division, not the
`
`Waco Division. According to Apple’s investigation, there are a handful of Apple engineers
`
`knowledgeable about the accused technology relating to only one of the four asserted patents.
`
`Accordingly, should the Court deny Apple’s request to transfer this action to N.D. Cal., this case
`
`should at least be transferred to the Austin Division because this action has no material
`
`connection to the Waco Division.
`
`
`
`-1-
`
`

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`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 6 of 21
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`
`
`II.
`
`FACTUAL BACKGROUND
`
`Speir Has No Connection To The Western District of Texas
`
`A.
`Speir is organized and operates in Dublin, Ireland, and does not allege any connection to
`
`
`
`or interest in Texas. Dkt. No. 8 (“Am. Compl.”) ¶ 2. Speir is not registered to do business in
`
`Texas. Ex A.1 Speir was not involved in the Asserted Patents’ development. In fact, a mere
`
`four months before filing this suit, Speir acquired the Asserted Patents from L3Harris
`
`Technologies, Inc., headquartered in Florida with no connection to the W.D. Tex. Ex. B. Speir
`
`has not identified any relevant witnesses, documents, or evidence in Texas, let alone in the Waco
`
`Division. Moreover, Speir can hardly claim that the Western District of Texas is the most
`
`convenient forum—it has filed suits in three other venues on one or more of the Asserted Patents
`
`within the last year, including in California.2
`
`This Lawsuit and The Asserted Patents
`
`B.
`Speir alleges that certain Apple products infringe U.S. Patent Nos. 8,345,780 (“’780
`
`Patent); 7,110,779 (“’779 Patent”); 7,321,777 (“’ 777 Patent); and 7,765,399 (“’399 Patent”)
`
`(collectively, the “Asserted Patents”). Am. Compl. ¶ 1. Speir’s infringement allegations cover a
`
`broad spectrum of Apple products and features. Speir accuses 5G cellular technology in certain
`
`Apple products of infringing the ’780 Patent (“Accused ’780 Functionalities”). Id., ¶¶ 14-21.
`
`The Accused ’780 Functionalities are implemented by Qualcomm components supplied to
`
`Apple. Ex. C. Speir also accuses the “Precision Finding” feature in certain Apple products of
`
`infringing the ’777 Patent and the ’779 Patent (“Accused ’777/’779 Functionalities”).
`
`
`1 All exhibits are to the Declaration of Stepan Starchenko, unless otherwise indicated.
`2 See Speir Techs. Ltd. v. Samsung Elecs. Co., No. 2:21-cv-00474, Dkt. No. 1 (E.D. Tex. Dec.
`30, 2021); Speir Techs. Ltd. v. Google LLC, No. 3:22-cv-00371, Dkt. No. 1 (S.D. Cal. Mar. 21,
`2022); Speir Techs. Ltd. v. Motorola Mobility LLC, No. 1:22-cv-02101, Dkt. No. 1 (N.D. Ill.
`Apr. 22, 2022).
`
`
`
`-2-
`
`

`

`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 7 of 21
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`
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`Am. Compl. ¶¶ 28-33, 39-45. Finally, Speir separately alleges that Apple’s FaceID/TouchID
`
`authentication technology and Apple’s “Secure Enclave” infringe the ’399 Patent
`
`(“Accused ’399 Functionalities”).3 Id., ¶¶ 51-61. In its original complaint, Speir did not allege
`
`infringement of the ’399 Patent, nor did Speir accuse many of the products now alleged as
`
`infringing.4 Apple moved to dismiss the ’399 Patent from this case under Fed. R. Civ.
`
`P. 12(b)(6). Def. Mot. to Dismiss, Dkt. No. 13. The Court has not yet ruled on Apple’s motion.
`
`As explained below, the connection between the ’399 Patent’s infringement claims and Texas are
`
`minimal and without the ’399 Patent, this action has no connection to Texas.
`
`C.
`
`The Overwhelming Majority of Apple’s Likely Witnesses and Documents
`Are In The Northern District of California
`
`Apple’s N.D. Cal. Sources of Proof
`
`1.
`Apple is a California corporation headquartered in Cupertino, CA, since 1976. Decl. of
`
` (“
`
` Decl.”) ¶ 3. Apple employs more than
`
` people who work in or
`
`near its headquarters. Id. Although Apple sells products throughout the U.S.,
`
`
`
` occur in N.D. Cal.
`
`Specifically, Apple’s employees and likely trial witnesses knowledgeable about Apple’s business
`
`practices concerning the accused products are all located in in N.D. Cal.5 Id., ¶¶ 3-6; Decl. of
`
` (“
`
` Decl.”)
`
` ¶¶ 1-4; Decl. of
`
`(
`
` Decl.”)
`
`Decl.”)
`
` ¶¶ 1-4; Decl. of
`
` (“
`
` ¶¶ 1-4.
`
`
`
`
`
`
`3 For purposes of this motion, Apple refers to the Accused ’780, ’777/’779, and ’399
`Functionalities, collectively, as the “Accused Technologies.”
`4 Speir’s Amended Complaint, filed two months after its original Complaint, added iPhone
`models 5s through 11, iPad Air, and MacBook as additional accused products. Compare Am.
`Compl. ¶ 12 with Compl. ¶ 10. Speir accused additional products in its Infringement
`Contentions. Compare Am. Comp. ¶ 12, with Ex. D at 1.
`5 Apple’s Texas retail facilities do not have any relevant employees or records.
`
` Decl. ¶ 6.
`
`
`
`-3-
`
`

`

`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 8 of 21
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`
`
`Moreover, the vast majority of Apple’s technical witnesses also are all located in N.D.
`
`Cal. With respect to the Accused ’780 Functionalities implemented by Qualcomm components,
`
`the relevant Apple employees, if any, are all in N.D. Cal.:
`
`•
`
`•
`
`4);
`
`
`
` Decl. ¶¶ 1-
`
`
`
`
`
` Decl. ¶¶ 1-4).
`
`With respect to the Accused ’777/’779 Functionalities, the Apple employees who
`
`designed, developed, and have personal knowledge of the accused Precision Finding technology
`
`are all located in N.D. Cal.:
`
`•
`
`•
`
`Decl., ¶¶ 1-4).
`
` Decl. ¶¶ 1-4);
`
`
`
`
`
`
`
`These employees work and reside in N.D. Cal., and none of them, nor their teams, work
`
`with anyone located in Texas in connection with the Accused ’780 and ’777/’779 Functionalities.
`
` Decl. ¶ 5;
`
` Decl. ¶ 5;
`
` Decl. ¶ 5;
`
` Decl., ¶ 5. The ’777, ’780, and ’779
`
`Patents have no connection (witness, documentation, or otherwise) to Texas.
`
`The Accused ’399 Functionalities implicate Apple’s TouchID/FaceID team, the Secure
`
`Enclave team, and the team responsible for the Secure Enclave’s Operating System (“sepOS”).
`
`
`
`-4-
`
`

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`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 9 of 21
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`
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`Ex. D. The Apple engineers who designed, developed, and have personal knowledge of these
`
`Accused ’399 Functionalities are all located in N.D. Cal.:
`
`•
`
`•
`
`•
`
` This team is located N.D. Cal.
`
`, and does not
`
`work with any individuals located in Texas
`
` Decl. ¶¶ 1-6);
`
`
`
`
`
` work and reside in N.D. Cal. (
`
` Decl., ¶¶ 1-5);
`
`
`
`
`
`
`
`
`
` work and reside in N.D. Cal.
`
` Dec., ¶¶ 1-5).
`
`
`
`Apple’s Limited Sources of Proof in Austin
`
`2.
`While the Secure Enclave team currently has a limited presence in Austin, Texas, Apple
`
`engineers
`
` who are located in N.D. Cal., and are likely to be far
`
`
`
`
`
`more important witnesses.
`
` ¶¶ 6-10. Indeed,
`
`
`
`
`
` Decl. ¶¶ 4-5. Importantly, because
`
`Speir’s infringement allegations reach back to the iPhone 5s (originally released in 2013),
`
`
`
`
`
`
`
`-5-
`
`

`

`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 10 of 21
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`
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`Accused ’399 Functionality. Those engineers are in N.D. Cal., not Texas.
`
` Decl. ¶ 6;
`
` Decl., ¶¶ 4-5, 10;
`
` Decl., ¶ 5.
`
`In sum, the allegations for all four patents will require testimony from engineers and
`
`Apple’s business-side employees solely located in N.D. Cal. Thus, the majority of Apple
`
`employees implicated in this action are in N.D. Cal., with a limited set of Secure Enclave
`
`engineers in Austin, none of whom has a connection to Waco.
`
`Relevant Nonparty Witnesses Are Also in California
`
`D.
`The Accused ’780 Functionalities are implemented through Qualcomm components.
`
`Decl., ¶ 5. Qualcomm is headquartered in San Diego, CA, and Qualcomm employees that
`
`. Ex. E.
`
` Decl., ¶ 3;
`
`
`
`Decl., ¶ 5. Qualcomm’s importance to this action is evident as Speir has already filed a motion
`
`for leave to subpoena Qualcomm, seeking “documents and software that is directly relevant to
`
`Speir’s infringement contentions for the ’780 Patent.” Dkt No. 34 at 2.
`
`III. APPLICABLE LAW
`A defendant is entitled to transfer under 28 U.S.C. § 1404(a) if it shows (1) that the suit
`
`“might have been brought” in the proposed transferee district and (2) the “transferee venue is
`
`clearly more convenient” than the district in which suit was filed. In re Volkswagen of Am., Inc.,
`
`545 F.3d 304, 312-15 (5th Cir. 2008) (“Volkswagen II”). In determining relative “convenience,”
`
`courts weigh the “private” and “public” interest factors. Id. at 315. The weighing of the factors
`
`“reflects the appropriate deference to which the plaintiff’s choice of venue is entitled.” Id.
`
`The private factors are: “(1) the relative ease of access to sources of proof; (2) the
`
`availability of compulsory process to secure the attendance of witnesses; (3) the cost of
`
`attendance for willing witnesses; and (4) all other practical problems that make trial of a case
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`easy, expeditious, and inexpensive.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)
`
`
`
`-6-
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`

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`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 11 of 21
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`
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`(citation omitted) (“Volkswagen I”). The public factors are: “(1) the administrative difficulties
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`flowing from court congestion; (2) the local interest in having localized interests decided at
`
`home; (3) the familiarity of the forum with the law that will govern the case; and (4) the
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`avoidance of unnecessary problems of conflict of laws or in the application of foreign law.” Id.
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`Of these factors, the “convenience of the witnesses is probably the single most important.” In re
`
`Apple Inc., 818 F. App’x 1001, 1003 (Fed. Cir. 2020) (citation omitted) (“Apple I”).
`
`On balance, courts should look to where the action’s “center of gravity” is. Juniper I,
`
`2022 WL 1491097, at *3. The transferee venue is clearly more convenient when it is the
`
`defendant’s home and the plaintiff has no ties to the transferor forum. See In re HP Inc., 826 F.
`
`App’x 899, 904 (Fed. Cir. 2020).
`
`IV.
`
`THIS ACTION SHOULD BE TRANSFERRED TO THE NORTHERN DISTRICT
`OF CALIFORNIA—THE CLEARLY MORE CONVENIENT VENUE
`
`The first step of the transfer analysis is satisfied because Apple is a California corporation
`
`headquartered in N.D. Cal.
`
` Decl. ¶ 3. Thus, this suit could have been brought in that
`
`district. See Volkswagen II, 545 F.3d at 312-13; see also 28 U.S.C. § 1400(b); In re Cray Inc.,
`
`871 F.3d 1355, 1360 (Fed. Cir. 2017). The second step of the analysis also weighs in favor of
`
`transfer because N.D. Cal. is the clearly more convenient forum according to the private and
`
`public interest factors. Indeed, the relative ease of access to sources of proof, compulsory
`
`process, the convenience of willing witnesses, and the local interest factors all strongly weigh in
`
`favor of transfer to N.D. Cal. All remaining factors are neutral. No factor weighs in favor of
`
`W.D. Tex.
`
`A.
`
`The Private Interest Factors Weigh Decisively In Favor of Transfer
`
`1.
`
`Relative ease of access to sources of proof strongly favors transfer
`
`
`
`-7-
`
`

`

`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 12 of 21
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`
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`Relevant sources of proof are overwhelmingly in N.D. Cal., while no evidence is in
`
`Waco. “In patent infringement cases, the bulk of the relevant evidence usually comes from the
`
`accused infringer. Consequently, the place where the defendant’s documents are kept weighs in
`
`favor of transfer to that location.” In re Apple Inc., 979 F.3d 1332, 1339-40 (Fed. Cir. 2020)
`
`(“Apple III”); see DataQuill, Ltd. v. Apple Inc., No. A-13-CA-706, 2014 WL 2722201, at *3
`
`(W.D. Tex. June 13, 2014) (the “location of the [accused infringer’s] documents tends to be the
`
`more convenient venue”) (citation omitted). In weighing this factor, “the Court will look to the
`
`location where the allegedly infringing products were researched, designed, developed and
`
`tested.” XY, LLC v. Trans Ova Genetics, LC, No. W-16-CA-447, 2017 WL 5505340, at *13
`
`(W.D. Tex. Apr. 5, 2017) (citation omitted).
`
`Here, Apple’s sources of proof are overwhelmingly in and around Apple’s N.D. Cal.
`
`headquarters, where the majority of its documents and document custodians are located. In re
`
`Google LLC, No. 2021-178, 2021 WL 5292267, at *2 (Fed. Cir. Nov. 15, 2021) (“[T]he location
`
`of document custodians and location where documents are created and maintained . . . may bear
`
`on the ease of retrieval.”). More specifically, the Accused ’777/’779 Functionalities were and
`
`are designed and developed in Cupertino, CA, as were and are the Accused ’399 Functionalities,
`
`with knowledgeable custodians with relevant documents still located there.
`
` Decl. ¶¶ 4-6;
`
` Decl., ¶¶ 4-6;
`
` Decl. ¶¶ 4-7;
`
` Decl., ¶¶ 4, 11;
`
` Dec., ¶¶ 4-6. Any
`
`relevant non-Qualcomm documents pertaining to the Accused ’780 Functionalities would also be
`
`located in N.D. Cal.
`
` Decl. ¶¶ 4-6;
`
` Decl. ¶¶ 4-6. Accordingly, all of the documents
`
`concerning the Accused ’780 and ’779/’779 Functionalities, and the majority of documents
`
`concerning the Accused ’399 Functionalities
`
`
`
`—located in N.D. Cal.
`
`-8-
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`
`
`

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`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 13 of 21
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`
`
`Similarly, Apple’s
`
`
`
` related to the Accused Technologies are all in N.D. Cal., including business records
`
`relating thereto.
`
` Decl.¶¶ 3, 5;
`
` Decl.¶¶ 3-4, 6;
`
` Decl. ¶¶ 3-6;
`
` Decl.
`
`¶¶ 3-6. That this wealth of evidence exists in N.D. Cal. is “unsurprising”—that is where the
`
`Accused Technologies were “researched, designed, and developed.” In re Samsung Elecs. Co., 2
`
`F.4th 1371, 1379-80 (Fed. Cir. 2021) (“Samsung”); 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).
`
`Critically, Apple has no witnesses in the Waco division. While Apple’s identified
`
`Austin-based employees
`
`
`
` are
`
`cumulative of those in N.D. Cal.—representing a small fraction of the total evidence implicated
`
`by Speir’s allegations. See supra § II.C; see Logantree LP v. Apple Inc., No. 6:21-cv-00397-
`
`ADA, 2022 WL 1491097, at *2 (W.D. Tex. May 11, 2022) (“[T]he movant need not show that
`
`all relevant documents are located in the transferee venue to support a conclusion that the
`
`location of relevant documents favors transfer.”) (quoting Apple III, 979 F.3d at 1340).
`
`By contrast, Speir is a European entity that likely has few sources of proof at all—let
`
`alone any in W.D. Tex. See Am. Compl. ¶ 2. Speir does not appear to conduct any significant
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`business activities and therefore is not likely to have many documents, much less any in Texas.
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`None of the Complaint’s allegations are tethered to W.D. Tex.
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`Finally, third-party Qualcomm’s sources of proof would likely be located in California
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`where Qualcomm is headquartered—weighing in favor of transfer to N.D. Cal. See supra § II.D;
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`-9-
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`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 14 of 21
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`
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`VLSI Tech. LLC v. Intel Corp., No. 6:19-cv-00254-ADA, 2019 WL 8013949, at *3-4 (W.D. Tex.
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`Oct. 7, 2019) (noting that third-party 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 to that District. Apple III, 979 F.3d at 1340 (this factor requires considering Apple’s
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`“significant amount of relevant information in NDCA, including the relevant source code, Apple
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`records relating to the research and design of the accused products, and marketing, sales, and
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`financial information for the accused products”); see also Cub Club Inv., LLC v. Apple, Inc., No.
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`6:20-cv-00856-ADA, ECF No. 28, at 6 (W.D. Tex. Sept. 7, 2021) (“Given (1) that Apple resides
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`in [N.D. Cal.] and (2) that the accused features were apparently developed at Apple’s offices in
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`California, the Court here finds this factor weighs in favor of transfer to NDCA.”).
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`2.
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`Compulsory process over third-party witnesses favors transfer to N.D.
`Cal.
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`The compulsory process factor strongly favors transfer because N.D. Cal. will have
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`absolute subpoena power over Qualcomm employees, whereas no identified witnesses are
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`subject to compulsory process in W.D. Tex. See Fed. R. Civ. P. 45(c) (limiting compulsory
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`process of non-party witnesses to “100 miles of” or “the state where” the person resides, works,
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`or regularly transacts business in person). When, like here, a substantial number of non-willing
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`witnesses reside in the transferee forum, and none reside in the transferor forum, this factor
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`strongly supports transfer. See In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009).6
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`Here, the relevant third-party witnesses, namely any Qualcomm witnesses, are in
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`California, well outside this District’s compulsory power. Speir admits that the ’780 Accused
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`6 A movant need not show that a witness is unwilling to testify when (as here) third-party
`witnesses are overwhelmingly in the transferee district or there is no indication of a particular
`witness’s unwillingness. In re Pandora Media, LLC, No. 2021-172, 2021 WL 4772805, at *3
`(Fed. Cir. Oct. 13, 2021); In re Hulu, LLC, No. 2021-142, 2021 WL 3278194, at *4 (Fed. Cir.
`2021).
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`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 15 of 21
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`
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`Functionalities are “supplied by Qualcomm.” Dkt. No. 34 at 2 (“the [accused] 5G cellular
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`functionality in certain of Apple’s accused products . . . is supplied by Qualcomm.”); see also
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`Ex. C. Qualcomm is headquartered in California and
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`
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`, thus Qualcomm’s likely witnesses are in California.
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`
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`Decl. ¶ 3;
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` Decl. ¶¶ 3, 5; Ex. E.
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`This factor strongly favors transfer because “more third-party witnesses reside within the
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`transferee venue than reside in the transferor venue.” In re Apple, Inc., 581 F. App’x 886, 889
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`(Fed. Cir. 2014) (“Apple IV”). This factor is near dispositive when, as here, the identified and
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`relevant potential “third-party witnesses … [are] overwhelmingly located within the subpoena
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`power of only the transferee venue.” In re Hulu, 2021 WL 3278194, at *4.
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`Cost of attendance for willing witnesses favors transfer
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`3.
`The convenience and cost of witness attendance is the most important factor, and this
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`consideration is no less important for party witnesses. See 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.”) (citing In re Hulu, 2021
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`WL 3278194, at *5). This factor weighs strongly in favor of transfer when, as here, “there are
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`several witnesses located in the transferee forum and none in the transferor forum.” See In re
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`Apple Inc., 2021 WL 5291804, at *3 (W.D. Tex. Nov. 15, 2021) (“Apple II”).
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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. See supra § II.C. In contrast, Speir has not identified a single
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`witness in Texas. See supra § II.A. Apple’s witnesses, including Apple’s engineering teams in
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`N.D. Cal., will be key to Apple’s presentation and defenses, including for non-infringement and
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`damages issues, such as apportionment. See supra § II.C. Relevant and likely witnesses also
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`include Apple’s
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`
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` located in N.D. Cal.—these
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`-11-
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`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 16 of 21
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`
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`witnesses are imperative, for example, to refute Speir’s allegations of indirect infringement and
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`damages. Id.
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`The inconvenience of a trial in this District is not diminished because these individuals
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`are Apple employees. If transfer were denied, they would experience substantial expense and
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`disruption in their professional and personal lives, resulting in the precise inconveniences
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`§ 1404(a) was designed to address. See Apple II, 2021 WL 5291804, at *3; In re Volkswagen I,
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`371 F.3d at 204-05; Juniper II, 14 F.4th at 1319-20 (concluding the district court erred in
`
`attaching “little weight to the evidence regarding the party witnesses”). If this case were litigated
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`in N.D. Cal., in contrast, these employees would be required to drive only a short distance to a
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`courthouse, substantially minimizing disruption to their personal and professional lives.
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`The convenience of these N.D. Cal. witnesses—even if some may not ultimately testify at
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`trial—weighs strongly in favor of transfer and must be considered. See Juniper II, 14 F. 4th at
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`1319-20 (a district court may not discount the convenience of a witness based on a “categorical
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`assumption” regarding his or her likelihood of testifying). This is true particularly when, as here,
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`Speir has identified no witnesses in W.D. Tex. and there is “nothing on the other side of the
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`ledger.” Samsung, 2 F.4th at 1379; see also Freshub, Inc. v. Amazon.com Inc., No. 19-cv-388-
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`ADA, 2019 WL 10856832, at *1 (W.D. Tex. Sept. 9, 2019) (“Of greatest import to the Court is
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`that no anticipated party or non-party witnesses reside in the Waco Division.”).
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`Any remaining “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. The little progress in this case since Speir’s Complaint is irrelevant to
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`this analysis. See In re TracFone Wireless, Inc., 848 F. App’x 899, 901 (Fed. Cir. 2021)
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`(“[P]rogress of the case since the filing of the complaint is irrelevant when considering the
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`transfer motion and should not color [a district court’s] decision.”) (citation omitted).
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`Case 6:22-cv-00077-ADA Document 39 Filed 08/15/22 Page 17 of 21
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`B.
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`Public Interest Factors Weigh In Favor of Transfer
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`The court congestion factor is neutral
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`1.
`As this Court recently held, bound by Federal Circuit guidance, this factor is neutral
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`because “the Western District of Texas and the Northern District of California show no
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`significant differences in caseload or time-to-trial statistics.” Logantree LP, 2022 WL 1491097,
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`at *8 (quoting Juniper II, 14 F.4th at 322).
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`The local interest factor favors transfer
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`2.
`N.D. Cal. has a substantially greater interest in the outcome of this case than W.D. Tex.,
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`favoring transfer. See In re DISH Network, LLC, No. 2021-182, 2021 WL 4911981, at *3 (Fed.
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`Cir. Oct. 21, 2021) (comparing the relative interest in the transferee and transferor forums)
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`(“DISH”). Apple’s headquarters, its principal place of business, and the events that gave rise to
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`this suit are in N.D. Cal. Moreover, “because the accused products were designed, developed
`
`and tested in NDCA; and because the lawsuit calls into question the work and reputation of
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`several individuals residing in NDCA, this factor weighs in favor of transfer.” Apple III, 979
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`F.3d at 1345 (internal citation omitted). Indeed, the design and development of the Accused
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`Technologies occurred in Cupertino, with the majority of the relevant engineering teams
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`responsible for the Accused Technologies, as well as the
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`,
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`still located in N.D. Cal. See supra § II.C.
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`While Apple is present in Texas,
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` Apple employees—implicated only by