Case 2:12-cv-00007-RGD-LRL Document 43 Filed 10/03/12 Page 1 of 14 PageID# 1698
`FILED
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF VIRGINIA
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`Norfolk Division
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`OCT 3 2012'
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`CLERK, US DISTRICT COURT
`NORFOLK, VA
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`INNOVATIVE COMMUNICATIONS TECHNOLOGIES, INC.
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`Plaintiff,
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`v.
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`Civil Action No. 2:12cv7
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`VIVOX, INC.
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`Defendant.
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`INNOVATIVE COMMUNICATIONS TECHNOLOGIES, INC.
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`Plaintiff,
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`v.
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`Civil Action No. 2:12cv8
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`OOVOO, LLC,
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`Defendant.
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`INNOVATIVE COMMUNICATIONS TECHNOLOGIES, INC.
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`Plaintiff,
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`v.
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`Civil Action No. 2:12cv9
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`STALKER SOFTWARE, INC.
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`Defendant.
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`OPINION AND ORDER
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`This matter involves a patent dispute between Plaintiff Innovative Communications
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`Technologies, Inc., ("Plaintiff) and Defendants Vivox, Inc., Oovoo, LLC, and Stalker Software,
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`Inc. (collectively "Defendants"). The Court has consolidated the three cases listed above for the
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`purposes of the Markman hearing and trial. Defendants Vivox and Stalker have both filed
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`Motions to Transfer Venue pursuant to 28 U.S.C. § 1404(a) alleging that Plaintiff and this action
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`have no meaningful connection to the Eastern District of Virginia. For the reasons set forth
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`Case 2:12-cv-00007-RGD-LRL Document 43 Filed 10/03/12 Page 2 of 14 PageID# 1699
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`herein, Defendants motions are DENIED at this time. The Court will allow the defendants to
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`file motions to transfer venue following the Markman hearing.
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`I.
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`PROCEDURAL AND FACTUAL BACKGROUND
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`On January 4, 2012, Plaintiff filed suit against Defendants and alleges the infringement of
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`United States Patent Nos.: 6,108,704 ("the '704 patent"); 6,513,066 ("the '066 patent");
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`6,701,365 ("the '365 patent"); 6,131,121 ("the '121 patent"); and 6,009,469 ("the '469 patent")
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`against Vivox and the infringement of three United States Patent Nos.: the '704 patent; the '066
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`patent; and the '365 patent (collectively, the "Asserted Patents") against Stalker. Plaintiff alleges
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`that Defendants have infringed, and continue to infringe, its Asserted Patents regarding voice
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`over internet protocol ("VoIP") products and/or services. Plaintiff seeks a judgment in its favor,
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`an injunction, and damages.
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`As alleged in the Complaint, Plaintiff is a Delaware corporation with its principal place
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`of business at 1655 Fort Meyer Drive, #700, Arlington, VA 22209. Vivox Compl. H 1. Vivox is
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`a Delaware corporation with a principal place of business at 2-4 Mercer Road, Natick, MA
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`07160. Id. U 2. Citing the declaration of Robert Seaver, the Founder and Chief Strategy Officer
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`of Vivox, Vivox states that it employs approximately thirty individuals at its headquarters and
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`provides design, development, operations, marketing, sales, and other functions from this
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`location. Vivox Mot. Transfer 2. Vivox further states that one employee works from a home-
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`based office in Texas and that is has no physical presence outside of Massachusetts other than a
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`server collocation space leased in New York, NY. Id.
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`In addition, Vivox states that all
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`documents and witnesses related to the design, development, operations, marketing, and sales of
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`the Asserted Patents are located in Massachusetts. Id.
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`Stalker, doing business as CommuniGate, is a California corporation with a principal
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`place of business at 655 Redwood Highway, Suite 275, Mill Valley, CA 94941. Stalker Compl.
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`K 2. Citing the declaration of Vladimir Butenko, the President of Stalker Software, Stalker states
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`that its evidence, documents, and witnesses relevant to this litigation and the asserted patents are
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`located either in the Northern District of California or overseas. Stalker Mot. Transfer 2-3.
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`With regard to Vivox, after repeated requests for extensions of time in which to file an
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`Answer, which the Court granted, Vivox filed an Answer on June 25, 2012. On July 12, 2012,
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`this Court entered its Markman Order and consolidated this case with the above-captioned cases
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`for the purposes of the Markman Hearing and Trial. On August 7, 2012, Vivox filed its initial
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`Claim Construction Brief, and it filed its subsequent Claim Construction Brief on September 14,
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`2012. On August 10, 2012, Vivox filed the instant Motion to Transfer Venue. Plaintiff filed a
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`timely Response in Opposition, and Vivox filed a timely Reply. Therefore, this matter is ripe for
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`decision.
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`After repeated requests for extensions of time in which to file an Answer, Stalker filed an
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`Answer on April 10, 2012. On June 15, 2012, this Court entered its Markman Order and
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`consolidated this case with the above-captioned cases for the purposes of the Markman Hearing
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`and Trial. Stalker filed its initial Claim Construction Brief on August 7, 2012, and its subsequent
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`Claim Construction Brief on September 14, 2012. After fully briefing the Markman Hearing,
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`and only sixteen days before the date of the Markman hearing, the date of which was set on June
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`15, 2012, Stalker filed its Motion to Transfer Case. Plaintiff has not yet filed a Response.
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`However, in the interests of judicial economy, since both Vivox and Stalker raise substantially
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`similar arguments in their motions to transfer venue—indeed, parts of their motions are
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`identical—the Court will decide both motions simultaneously. Although the Court denies
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`Case 2:12-cv-00007-RGD-LRL Document 43 Filed 10/03/12 Page 4 of 14 PageID# 1701
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`Defendants' motions at this time, the Court will entertain renewed motions concerning transfer
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`of venue following the Markman hearing on October 10,2012.
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`II.
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`APPLICABLE LAW AND ANALYSIS
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`Under 28 U.S.C. § 1404(a) "[t]or the convenience of parties and witnesses, in the interest
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`of justice, a district court may transfer any civil action to any other district or division where it
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`might have been brought...." The decision to transfer venue is committed to the sound discretion
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`of the district court. See One Beacon Ins. Co. v. JNB Storage Trailer Rental Corp., 312
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`F.Supp.2d 824, 828 (E.D.Va.2004) (citing Heinz Kettler GMBH & Co. v. Razor USA, LLC, 750
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`F. Supp. 2d 660, 667 (E.D. Va. 2010)). In considering whether to allow transfer, the court makes
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`two inquiries: whether the claims could have been brought in the transferee forum, and whether
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`the interests of justice and convenience of the parties and witnesses support the transfer. Koh v.
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`MicrotekInt'l, Inc., 250 F. Supp. 2d 627, 630 (E.D. Va. 2003).
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`In this matter, it does not appear that the parties contest that these suits could have been
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`filed originally in the United States District Court for the District of Massachusetts with regard to
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`Vivox and for the Northern District of California with regard to Stalker. A corporation is subject
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`to personal jurisdiction in a district where it has its principal place of business, where it has
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`certain "minimum contacts," or where the litigation results from injuries that arise out of or relate
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`to the corporation's activities in the district. See, e.g., Koh 250 F. Supp. 2d at 631; NanoEnTek,
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`Inc. v. Bio-Rad Labs., 2:11CV427, 2011 U.S. Dist. LEXIS 138535, at *4-5 (E.D. Va. Dec. 2,
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`2011). If personal jurisdiction is proper for a corporate defendant, then venue is also proper:
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`"[U]nder § 1400(b) [and] § 1391(c), the tests for venue and personal jurisdiction are
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`interchangeable for corporations." LG Elecs. Inc. v. Advance Creative Computer Corp., 131 F.
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`Case 2:12-cv-00007-RGD-LRL Document 43 Filed 10/03/12 Page 5 of 14 PageID# 1702
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`Supp. 2d 804, 810 (E.D. Va. 2001); see 28 U.S.C. § 1391(c) ("[A] defendant that is a corporation
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`shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at
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`the time the action is commenced."); 28 U.S.C. § 1400(b) (venue proper where the defendants
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`reside).
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`Vivox has its principal place of business in Massachusetts and is subject to personal
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`jurisdiction in the District of Massachusetts. Therefore venue in the District of Massachusetts is
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`proper as well with regard to Vivox. Similarly, Stalker has its principal place of business in
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`California and is subject to personal jurisdiction in the Northern District of California. Therefore
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`venue in the Northern District of California is proper as well with regard to Stalker.
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`With this threshold inquiry met, the Court turns to the question of the interests of justice
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`and the convenience of the parties and witnesses. In addressing this question, the Court
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`considers four factors: (1) the plaintiffs choice of forum; (2) the convenience of the parties; (3)
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`the convenience of the witnesses; and (4) the interests of justice. See Heinz Kettler GMBH &
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`Co. v. Razor USA, LLC, 750 F. Supp. 2d 660, 667 (E.D. Va. 2010). The party seeking transfer
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`bears the burden of demonstrating that "the circumstances of the case are strongly in favor of
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`transfer." Id (emphasis in original). In balancing these four factors, the Court finds that
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`Defendants Vivox and Stalker have not met their burden.
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`A. Plaintiff's Choice of Forum
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`Typically, a plaintiffs choice of forum is entitled to substantial weight, especially where
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`the chosen forum is the plaintiffs home forum or bears a substantial relation to the cause of
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`action. Id (citing Koh, 250 F. Supp. 2d at 633). To overcome the plaintiffs privilege of
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`choosing the forum, a "movant bears the burden of demonstrating that the balance of
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`convenience among the parties and witnesses is strongly in favor of the forum to which transfer
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`Case 2:12-cv-00007-RGD-LRL Document 43 Filed 10/03/12 Page 6 of 14 PageID# 1703
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`is sought." JTH Tax, Inc. v. Lee, 482 F. Supp. 2d 731, 736 (E.D. Va. 2007) (emphasis in
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`original). However, a plaintiffs chosen venue is "not given such substantial weight when the
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`plaintiff selects a forum other than its home forum and the claims bear little or no relation to the
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`chosen forum." Koh, 250 F. Supp. 2d at 633. Both Vivox and Stalker dispute that the Eastern
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`District of Virginia is Plaintiffs home forum, and the Court must, therefore determine whether
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`the Eastern District of Virginia is a home forum for Plaintiff and whether Plaintiffs claims are
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`sufficiently related to this District.
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`Although Plaintiff alleges in its Complaint that its principal place of business is located in
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`Arlington, VA within the Eastern District, Vivox and Stalker argue that this is a non-permanent,
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`virtual office. Vivox Mot. Transfer 3; Stalker Mot. Transfer 1. In support of this allegation,
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`Vivox and Stalker cite the declarations of a private investigator hired to investigate Plaintiffs
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`principal place of business. See Vivox Mot. Transfer 3. Defendants also cite the fact that Dun
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`& Bradstreet has no information about Plaintiff and Standard and Poor's Capital IQ database
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`reports that Plaintiff has offices at 520 Broad Street, Newark, NJ 07102, which is the same
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`address as Plaintiffs corporate parent, IDT Corporation. Id 3-4. In terms of additional ties to
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`this District, Defendants argue that none of the six witnesses Plaintiff has identified in its initial
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`disclosures reside within this District. Id 4. Three reside in the greater New York City area, and
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`three reside in Florida. Id
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`In response, Plaintiff has provided the Court with declarations that refute the allegations
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`made by Defendants' private investigator to some degree. PL's Resp. 2-3. Plaintiff states that it
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`maintains a dedicated office that contains physical files and records and that is used by its
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`employees. Id. Plaintiff also states that it filed a Form 15-12G to terminate its registration of
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`class B shares, which suspended the requirement that it file periodic reports with the Securities
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`Case 2:12-cv-00007-RGD-LRL Document 43 Filed 10/03/12 Page 7 of 14 PageID# 1704
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`and Exchange Commission under the Securities Exchange Act. Id. 3-4. Thus, Plaintiff has not
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`updated prior disclosures regarding its offices and operations. With regard to ties to this District,
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`Plaintiff argues that Virginia residents use Vivox products and services containing the Asserted
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`Patents and that Vivox customers, such as T-Mobile and Linden Lab, conduct substantial activity
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`in Virginia. Id. 5.
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`For the purposes of these motions, the Court "must construe all relevant pleading
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`allegations in the light most favorable to the plaintiff, assume credibility, and draw the most
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`favorable inferences for the existence of jurisdiction." Combs v. Bakker, 886 F.2d 673, 676 (4th
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`Cir. 1989). However, the evidence presented in the pleadings indicates that while Plaintiff may
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`have an office and presence in this District, and while Plaintiff states that this office is its
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`principal place of business and sole office, it is questionable whether Plaintiffs presence at this
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`office is sufficient to entitle it to home forum deference when weighing this first factor. Indeed,
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`Plaintiffs connection to this District appears to be somewhat tenuous despite the fact that it
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`maintains an office in Arlington—especially since it appears that no employees work there
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`permanently. In addition, other courts in this District have held that "[wjhether the Defendants
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`sold or offered for sale their allegedly infringing products or services in this district is of little
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`import: Sales activity alone does not establish a substantial connection to the forum." Augme
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`Techs., Inc., v. Gannett Co., 3:11CV282, 2011 U.S. Dist. LEXIS 81605 at *7-8 (E.D. Va. July
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`26, 2011) (citing Agilent Techs., Inc. v. Micromuse, Inc., 316 F. Supp. 2d 322, 327 n.3 (E.D. Va.
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`2004). Some courts in this District have also held, "a plaintiff filing suit in a district where it is
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`not a resident loses only some of the deference given its choice of forum." E. Scientific MJctg.,
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`Inc. v. Tekna-Seal, Inc., 696 F. Supp. 173, 179 (E.D. Va. 1988). Nevertheless, the Court finds
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`that Plaintiffs choice of forum here does not strongly weigh against transfer since Plaintiffs
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`Case 2:12-cv-00007-RGD-LRL Document 43 Filed 10/03/12 Page 8 of 14 PageID# 1705
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`presence in Arlington is negligible. Indeed, it appears that this District probably should not be
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`considered Plaintiffs home forum, and the claims bear almost no relation to this District. The
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`Court, therefore, gives this factor little or no weight in favor of Plaintiff.
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`B. Convenience of the Parties and Witnesses
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`The convenience of the parties and witnesses weighs neither for nor against transfer in
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`this matter with regard to the Markman hearing since the parties and witnesses are located in
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`many different fora. As the Court will discuss further below in analyzing the interests of justice,
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`these cases have been consolidated, the Markman hearing has been set and is fully briefed, and a
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`trial date has also been set. There are three defendants. Vivox is located in Massachusetts,
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`Stalker is located in California, and 00V00 is located in New York, NY.
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`Vivox argues that all of the relevant evidence, documents, and key witnesses are located
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`in Massachusetts, and that it would be more convenient for its employees to remain in
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`Massachusetts rather than disrupt their work obligations by traveling to Virginia. Vivox Mot.
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`Transfer 9-10. Stalker makes the same argument with regard to California and also states that
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`evidence, documents, and witnesses are located overseas.
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`Stalker Mot. Transfer 3, 8-10.
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`Defendants state that no key witnesses or documents are located in Virginia.
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`Defendants cite Augme Techs,, 2011 U.S. Dist. LEXIS 81605, at *8, for the proposition
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`that "the more important question is where the majority of the witnesses and evidence is
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`located." This argument may weigh in their favor if the Defendants were individually before the
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`Court. However, for the purposes of the Markman hearing, they are not, and the pleadings
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`indicate that the majority of the witness and evidence is not located in one single forum. Rather,
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`witnesses and evidence are located in Massachusetts, California, New York City, New Jersey,
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`Florida, and "overseas." This suggests that "the Eastern District of Virginia is no less convenient
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`Case 2:12-cv-00007-RGD-LRL Document 43 Filed 10/03/12 Page 9 of 14 PageID# 1706
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`than [a transferee] Court" at this time. WiAV Solutions, LLC v. Motorola, Inc., 2009 WL
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`3414612, *5 (E.D. Va. Oct. 20, 2009). "As the proponents of transfer, the Movants bear the
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`burden of showing that the Eastern District of Virginia is an inconvenient forum to litigate, not
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`merely that the [transferee court] is a more convenient forum." Id. at *4. There is no question
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`that it is more convenient for the parties to litigate in their home forum. However, where, as
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`here, all of the parties come from different fora, this argument also weighs against Defendants at
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`the present time.
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`In addition, one court in this District found that where convenience of the witnesses "is a
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`close issue and ultimately cannot be confidently determined from the existing sparse
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`record...[because] [n]either party [has] provide[d] the requisite particularity about the expected
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`witnesses and their potential testimony," the court should not accord this factor much weight.
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`Affinity Memory & Micro v.K&Q Enters., 20 F. Supp. 2d 948, 955 (E.D. Va. 1998). Another
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`court in this District found that where "the original forum is convenient for plaintiffs witness,
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`but inconvenient for defendant's witnesses, and the reverse is true for the transferee
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`forum...transfer is inappropriate because the result of transfer would serve only to shift the
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`balance of inconvenience." Board of Trustees v. Baylor Heating & Air Conditioning, Inc., 702
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`F. Supp. 1253, 1258 (E.D. Va. 1988). The court in Baylor Heating also stated the following:
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`Witness convenience is often dispositive in transfer decisions. But the influence
`of this factor cannot be assessed in the absence of reliable information identifying
`the witnesses involved and specifically describing their testimony. This type of
`particularized information, typically submitted in affidavit form, is necessary to
`enable the court to ascertain how much weight to give a claim of inconvenience.
`Inconvenience to a witness whose testimony is cumulative is not entitled to
`greater weight. By contrast, greater weight should be accorded inconvenience to
`witnesses whose testimony is central to a claim and whose credibility is also
`likely to be an important issue. Id.
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`In this matter, except for Stalker's identification of one potential, named witness who lives in the
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`Northern District of California, Defendants have made only vague generalizations about their
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`expected witnesses in Massachusetts and California and their potential testimony. As a result,
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`given that multiple defendants are involved in this matter, and that relevant evidence, documents,
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`and key witnesses witness are located in several fora, convenience of the parties and witnesses
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`does not support a decision to transfer this action at this time.
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`C. The Interests of Justice
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`The Court finds that the interests of justice weigh heavily against transfer at this point in
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`the proceedings after these three cases have been consolidated, right before the Markman
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`hearing, and after the Markman hearing has been fully briefed.
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`The interests of justice is a purposefully broad category which takes into account all
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`factors other than convenience and the parties' initial choice of venue. See Precision
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`Franchising, LLC v. Coombs, 1:O6CV1148, 2006 WL 3840334, at *6 (E.D. Va. Dec. 27, 2006);
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`Bd. ofTrs., Sheet Metal Workers Nat'I Fund v. Baylor Heating & Air Conditioning, Inc., 702
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`F.Supp. 1253, 1256 (E.D. Va. 1988). Such factors include "the pendency of a related action, the
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`court's familiarity with the applicable law, docket conditions, access to premises that might have
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`to be viewed, the possibility of unfair trial, the ability to join other parties, and the possibility of
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`harassment." Koh, 250 F. Supp. at 639. Courts in this District also entertain another factor—the
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`extent to which a plaintiff has engaged in forum shopping due to the presence of the "rocket
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`docket" in this District. See, e.g., Telepharmacy Solutions, Inc. v. Pickpoint Corp., 238 F. Supp.
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`2d 741, 744 (E.D. Va. 2003). While Plaintiff may have a more tenuous connection to this
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`District, the Court does not find that Plaintiff has engaged in blatant forum shopping.
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`Analyzing the other factors, the undersigned is familiar with patent law, and the docket is
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`not overburdened. In fact, the undersigned has no other patent cases pending at the present time.
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`In addition, no party has argued that the present venue will lead to an unfair trial. The most
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`important factor for this Court in considering the interests of justice is the pendency of other
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`actions, judicial economy, and the risk of inconsistent judgments. As the court stated in Heinz
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`Kettler, this final factor "encompasses public interest factors aimed at systemic integrity and
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`fairness" including "judicial economy and the avoidance of inconsistent judgments." 750 F.
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`Supp. 2d at 669. Indeed, "[o]ne of the most commonly cited aspects of the 'interest of justice'
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`factor is the goal of avoiding 'multiplicity of litigation from a single transaction.'" Samsung
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`Electronics Co. v. Rambus, Inc., 386 F. Supp. 2d 708, 721 (E.D. Va. 2005). It is important to
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`consider the pendency of related cases because "[i]n most cases, the 'litigation of related claims
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`in the same tribunal facilitates efficient, economical, and expeditious pre-trial proceedings and
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`discovery,' and prevents Muplicative litigation and inconsistent results.'" Id.
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`Vivox and Stalker argue that the Federal Circuit's decision in In re Zimmer Holdings,
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`Inc., 609 F.3d 1378 (Fed. Cir. 2010) rejects the argument that the pendency of other actions
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`weights against transfer. However, contrary to the way Defendants characterize Zimmer
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`Holdings, that case does not stand for a blanket rejection for considering the pendency of other
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`actions. Rather, as the Federal Circuit, clearly stated, although the district court had assigned
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`substantial weight to the fact that the plaintiff had filed another suit in the same forum, the
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`"circumstances of [that] case" did not outweigh the convenience factors where it found that the
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`overlap between the two cases pending before the district court was negligible. Id. at 1382.
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`Indeed, the Federal Circuit found that the Eastern District of Texas was only convenient for
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`Medldea's litigation counsel. Id. This case is clearly distinguishable from Zimmer Holdings
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`Case 2:12-cv-00007-RGD-LRL Document 43 Filed 10/03/12 Page 12 of 14 PageID# 1709
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`since the overlap between the three cases pending before this Court is not negligible—it is
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`significant for the purpose of the Markman hearing.
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`Vivox also cites In re Morgan Stanley, 417 Fed. Appx. 947 (Fed. Cir. 2011) and In re
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`Verizon Bus. Network Servs. Inc., 635 F.3d 559, 562 (Fed. Cir. 2011) for the proposition that
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`transfer is appropriate even where a trial court has some familiarity with a matter from prior
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`litigation or has actually previously issued a claim construction order in a case involving the
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`same patent. However, importantly, in Verizon, the district court had denied transfer solely on its
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`prior familiarity with the patent at issue five years before. The Federal Circuit found that this
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`alone was not sufficient to deny transfer when the convenience of the witnesses weighed in favor
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`of transfer and since the district court had to relearn a considerable amount due to a time lapse
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`between the suits and new materials that were not part of the record of the previous suit. In re
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`Verizon, 635 F.3d at 562. The Court finds that the present matter is clearly distinguishable from
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`these cases because this Court is not basing its decision solely on its familiarity with the patents
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`at issue. Indeed, the Court has not seen these patents before. The Court finds that the situation
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`before it is more analogous to the Federal Circuit's ruling in In re Vistaprint Ltd., 628 F.3d 1342,
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`(Fed.Cir.2010) where the court stated the following:
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`Our holding today does not mean that, once a patent is litigated in a particular
`venue the patent owner will necessarily have a free pass to maintain all future
`litigation involving that patent in that venue. However, where, as here, the trial
`court performed a detailed analysis explaining that it is very familiar with the only
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`asserted patent and the related technology, and where there is a co-pending
`litigation before the trial court involving the same patent-in-suit, and pertaining to
`the same underlying technology and accusing similar services, we cannot say the
`trial court clearly abused its discretion in denying transfer. Id. at 1347.
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`The matter presently before the Court involves the same patents, and pertains to the same
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`underlying technology and services, and this Court does not deny Defendants' motions on solely
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`Case 2:12-cv-00007-RGD-LRL Document 43 Filed 10/03/12 Page 13 of 14 PageID# 1710
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`one ground but rather because the balance of all of the factors considered together weighs against
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`Defendants at this time for the purpose of the Markman hearing.
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`In this case, the Court has consolidated three cases. The patents-in-suit contain
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`specifications that are substantially the same. Indeed, the technology and patents overlap to such
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`a degree that in the parties' joint Markman statement, Stalker and Vivox proposed identical
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`claim terms for construction and proposed construction, and 00V00 proposed identical
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`constructions plus one additional term. See ECF No. 27. In addition, all three Defendants have
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`filed a joint Claim Construction Brief. ECF No. 47. Even if, as Vivox argues in a footnote in its
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`Reply, ECF No. 34, that the recent amendments to the patent statute under 35 U.S.C. § 299 only
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`allow for joinder for the purposes of trial when two conditions apply—which Vivox has not
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`alleged apply here—, the Court notes that Vivox has not filed a motion to sever. Regardless of
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`whether these cases will or may remain consolidated for the purpose of trial, for the purpose of
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`the Markman hearing, the Court finds that the efficiency of the judicial process, economy of
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`judicial resources, the pendency of nearly identical actions which have already been
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`consolidated, and the risk of inconsistent judgments all demonstrate that the interests of justice
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`weigh heavily against transfer of venue in this matter at the present time. Having considered and
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`given appropriate weight to Plaintiffs choice of forum, the convenience of the parties and
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`witnesses, and the interests of justice, the Court denies Defendants Vivox and Stalker's motions
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`to transfer venue at this time.
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`III. CONCLUSION
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`For the reasons set forth in detail above, the Court hereby DENIES Vivox's Motion to
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`Transfer Venue and Stalker's Motion to Transfer Venue at this time. Having considered and
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`weighed Plaintiffs choice of forum, the convenience of the parties and witnesses, and the
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`Case 2:12-cv-00007-RGD-LRL Document 43 Filed 10/03/12 Page 14 of 14 PageID# 1711
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`interests of justice, the Court finds the current balance of the factors weighs against transfer of
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`venue prior to the Markman hearing that has already been fully briefed and is scheduled to take
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`place in ten days. Following the Markman hearing, the Court will allow the defendants to file
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`motions to transfer venue, if they so desire. The Clerk of the Court is DIRECTED to transmit a
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`copy of this Order to all counsel of record.
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`IT IS SO ORDERED.
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`14