Case 6:19-cv-00532-ADA Document 72 Filed 06/22/20 Page 1 of 34
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`UNILOC 2017 LLC,
` Plaintiff
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`-v-
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`APPLE INC.,
` Defendant
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`§
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`CIVIL NO. 6-19-CV-00532-ADA
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`ORDER DENYING MOTION TO TRANSFER
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`Came on for consideration this date is Defendant Apple Inc.’s motion for transfer to the
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`Northern District of California (“NDCA”) pursuant to 28 U.S.C. § 1404(a). The Court held a
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`hearing on the Motion on May 12, 2020. ECF No. 58. After considering the Motion, the briefs
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`filed by the Parties, and oral argument, the Court is of the opinion that the Motion should be
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`DENIED.
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`I. INTRODUCTION
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`A party seeking a transfer to an allegedly more convenient forum carries a significant
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`burden. Babbage Holdings, LLC v. 505 Games (U.S.), Inc., No. 2:13-CV-749, 2014 U.S. Dist.
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`LEXIS 139195, at *12–14 (E.D. Tex. Oct. 1, 2014) (stating the movant has the “evidentiary
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`burden” to establish “that the desired forum is clearly more convenient than the forum where the
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`case was filed.”). Apple does not contest that venue is proper in the Western District of Texas
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`(“WDTX”), nor could it. See generally, Def.’s Mot., ECF No. 15; Pl.’s Resp., ECF No. 38, at 2.
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`The burden that a movant must carry is not that the alternative venue is more convenient, but that
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`it is clearly more convenient. In re Volkswagen, Inc., 545 F.3d 304, 314 n. 10 (5th Cir. 2008)
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`(hereinafter “Volkswagen II). Apple moved to have this case transferred to NDCA. Apple relies
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`heavily on the fact that other courts have transferred other patent cases between it and three Uniloc
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`Case 6:19-cv-00532-ADA Document 72 Filed 06/22/20 Page 2 of 34
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`entities, including cases outside this judicial District. This Court finds that Apple fails to show that
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`transfer is warranted. While other cases involving Uniloc and Apple may be informative, the Court
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`notes that this case involves a different asserted patent and different technology from any other
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`case that Apple relies on and the Court believes that its determination in this case should be based
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`on the facts that are unique to this case. In short, discretionary decisions by other courts in different
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`cases do not compel the transfer of the current case. Thus, NDCA is not a clearly more convenient
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`venue and Apple’s Motion must be denied.
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`II. LEGAL STANDARD
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`Title 28 U.S.C. § 1404(a) provides that, for the convenience of parties and witnesses, a
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`district court may transfer any civil action to any other district or division where it might have been
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`brought or to any district or division to which all parties have consented. “Section 1404(a) is
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`intended to place discretion in the district court to adjudicate motions for transfer according to an
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`‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v.
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`Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
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`The party moving for transfer carries the burden of showing good cause. Volkswagen II, 545 F.3d
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`at 314 (“When viewed in the context of § 1404(a), to show good cause means that a moving party,
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`in order to support its claim for a transfer, must . . . clearly demonstrate that a transfer is ‘[f]or the
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`convenience of parties and witnesses, in the interest of justice.’”) (quoting 28 U.S.C. § 1404(a)).
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`“The preliminary question under § 1404(a) is whether a civil action ‘might have been
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`brought’ in the destination venue.” Volkswagen II, 545 F.3d at 312. If so, in the Fifth Circuit, the
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`“[t]he determination of ‘convenience’ turns on a number of public and private interest factors,
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`none of which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar.
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`Co., 358 F.3d 337, 340 (5th Cir. 2004). The private factors include: “(1) the relative ease of access
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`to sources of proof; (2) the availability of compulsory process to secure the attendance of
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`witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that
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`make trial of a case easy, expeditious and inexpensive.” In re Volkswagen AG, 371 F.3d 201, 203
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`(5th Cir. 2004) (hereinafter “Volkswagen I”) (citing to Piper Aircraft Co. v. Reyno, 454 U.S. 235,
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`241 n.6 (1982)). The public factors include: “(1) the administrative difficulties flowing from court
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`congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity
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`of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems
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`of conflict of laws of the application of foreign law.” Id. Courts evaluate these factors based on
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`“the situation which existed when suit was instituted.” Hoffman v. Blaski, 363 U.S. 335, 343
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`(1960).
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`A plaintiff’s choice of venue is not an independent factor in the venue transfer analysis,
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`and courts must not give inordinate weight to a plaintiff’s choice of venue. Volkswagen II, 545
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`F.3d at 313 (“[W]hile a plaintiff has the privilege of filing his claims in any judicial division
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`appropriate under the general venue statute, § 1404(a) tempers the effects of the exercise of this
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`privilege.”). However, “when the transferee venue is not clearly more convenient than the venue
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`chosen by the plaintiff, the plaintiff’s choice should be respected.” Id. at 315; see also QR Spex,
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`Inc. v. Motorola, Inc., 507 F.Supp.2d 650, 664 (E.D. Tex. 2007) (characterizing movant’s burden
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`under § 1404(a) as “heavy”).
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`A. Current case
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`III. BACKGROUND
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`Uniloc filed this lawsuit on September 10, 2019 alleging infringement of U.S. Patent No.
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`6,467,088 (“the ’088 Patent.). Pl.’s Compl., ECF No. 1. Previously, Uniloc filed suit against Apple
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`in WDTX alleging infringement of the ’088 Patent, in which Apple filed a petition for inter partes
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`review. Uniloc USA, Inc. v. Apple Inc., No. 1:18-CV-296 (W.D. Tex. April 9, 2019). On April 29,
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`2019, the Patent Trial and Appeal Board (“PTAB”) found no reasonable likelihood that Apple
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`would prevail on its assertions of invalidity and denied to institute inter partes review. PTAB
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`Decision, Ex. 1 at 21, ECF No. 38-2. Uniloc then filed the present suit.
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`According to Uniloc, the ’088 Patent is generally directed at “a reconfiguration manager
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`that may be implemented on a computer or other data processing device to control the
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`reconfiguration of software or other components of an electronic device . . . .” ’088 Patent at 2:22–
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`25, ECF No. 38-3. The claimed invention addresses the difficulty in “determin[ing] if a new or
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`improved component is compatible with the rest of the device . . . .” Id. at 1:22–25. Uniloc alleges
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`that the Accused Products include at least the Apple macOS, iOS, and iPadOS operating systems
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`and associated servers implementing iOS/macOS/iPadOS update functionality, Mac desktop and
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`notebook computers, iPad, iPhone, and iPod devices running the Apple operating systems, the App
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`Store, and associated servers implementing App Store functionality. ECF No. 1 at ¶ 10; Claim
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`Chart Ex. 3 at 1, ECF No. 38-4. According to Uniloc, “Apple (through a contractor, Flextronics)
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`has manufactured the accused Mac Pro computers in Austin.” ECF No. 38 at 2.
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`Uniloc 2017 LLC is a Delaware company that is part of the larger Uniloc family of entities.
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`Uniloc has an office in Tyler, Texas, and employees in Plano, Texas. Uniloc also has an office in
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`California. Apple is a California corporation headquartered in Cupertino, California. Apple has a
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`second campus in Austin, Texas that has 8,000 employees, with plans to have 15,000 employees
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`in the near future.1 Apple has several stores within WDTX, notably two in Austin, and three others
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`in San Antonio and El Paso.2
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`1 See Press Release, Apple, Apple Expands in Austin, Apple.com, https://apple.com/newsroom/2019/11/apple-
`expands-in-austin/ (last visited June 10, 2020).
`2 Apple Inc., https://www.apple.com/retail/storelist/ (last visited June 10, 2020).
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`Apple filed a Motion to Transfer Venue on November 12, 2019. ECF No. 15. On January
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`17, 2020, the Court granted the Parties’ Motion For Leave to Conduct Venue Discovery. On
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`February 10, 2020, Uniloc filed its Response in Opposition to Apple’s Motion to Transfer Venue.
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`ECF No. 38. Apple filed its Reply to Uniloc’s Response on February 20, 2020. ECF No. 40. The
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`Court held a telephonic hearing on the Motion to Transfer Venue on May 12, 2020 and denied the
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`Motion to Transfer. ECF No. 58.
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`B. Apple’s serial motions to transfer
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`Apple’s current motion to transfer is the latest in a series of motions to transfer that Apple
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`has filed in this Court. As of the date of this order, Apple has been sued for patent infringement
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`ten times in this Court. Of those ten cases, Apple has yet to file an answer or otherwise respond in
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`two cases (VoIP-Pal.com, Inc. v. Apple Inc. (6:20-cv-00275) and Neonode Smartphone LLC v.
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`Apple Inc. (6:20-cv-00505))), while another case (Neodron Ltd. v. Apple, Inc. (6:20-cv-00116))
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`was stayed pending ITC review. Of the remaining seven cases, Apple has filed a motion to transfer
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`pursuant to 35 U.S.C. § 1404 in five of them (Fintiv, Inc. v. Apple Inc. (1:19-cv-01238), STC.UNM
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`v. Apple Inc.(1:20-cv-00351), the instant case, Solas OLED Ltd. v. Apple Inc. (6:19-cv-00537),
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`and Parus Holdings Inc. v. Apple Inc. (6:19-cv-00432)). Of the five cases in which Apple has filed
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`a motion to transfer, the Court has denied three (including the instant case), while two more are
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`pending. In the two cases (excluding the instant case) in which the Court has denied Apple’s
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`motion to transfer, Apple has filed petitions for writ of mandamus in both of them. In re Apple Inc,
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`No. 20-00104 (Fed. Cir. 2019), petition for en banc review denied; In re Apple Inc, 2020-127,
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`2020 WL 3249953 (Fed. Cir. June 16, 2020). The Federal Circuit denied both petitions for writ of
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`mandamus, as well as Apple’s petition for en banc review.
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`Based on the fact that Apple has thousands of employees working in WDTX (with
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`thousands more projected to be added) and has its second largest physical campus here, and given
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`that, in the Fifth Circuit, the transferee venue must be “clearly more convenient,” the Court doubts
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`that it is likely that NDCA would actually be the “clearly more convenient” in each and every one
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`of the cases in which Apple has filed a motion to transfer venue.
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`Rather, it appears that Apple refuses to accept that the transferee district must be “clearly
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`more convenient.” See Volkswagen II, 545 F.3d at 315; see also Sanger Ins. Agency, Inc. v. HUB
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`Int'l, Ltd., No. 2:13-CV-528, 2014 WL 5389936, at *5 (E.D. Tex. Mar. 25, 2014) (holding that the
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`defendants failed to carry their burden of “clearly more convenient,” a “significant burden” which
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`is “a difficult burden to carry”); Konami Digital Entm't Co., Ltd. v. Harmonix Music Sys., Inc., No.
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`6:08CV286, 2009 WL 781134, at *1 (E.D. Tex. Mar. 23, 2009) (citing Volkswagen II, 545 F.3d at
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`314 n.10) (stating that a plaintiff's choice of venue must be respected because that choice places
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`the burden on the defendant to demonstrate why venue should be transferred); Estate of Bentley v.
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`Marriott Int’l Inc., No. 3:15-CV-1412-B, 2015 WL 5836256, at *1 (N.D. Tex. Oct. 2, 2015)
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`(stating that the “balance of these factors must clearly weigh in favor of transferring to the new
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`venue”); Fausto v. Parko Group, LLC, No. 3:18-CV-00323, 2019 WL 6686678, at *2 (S.D. Tex.
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`Oct. 31, 2019) (holding that defendants failed to prove transfer was clearly more convenient when
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`equal numbers of relevant factors favored both transfer and retention of the suit) (citing In re
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`Radmax, Ltd., 720 F.3d 285, 290 n.8 (5th Cir. 2013) (“We do not suggest—nor has this court
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`held—that a raw counting of the factors in each side, weighing each the same and deciding transfer
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`only on the resulting ‘score,’ is the proper methodology”)). But, at least in partial deference to
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`plaintiff’s choice of forum, the standard under which cases may be transferred is when the
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`transferee district is “clearly more convenient” than the transferor district, and not just a “little
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`more convenient.” See Volkswagen II, 545 F.3d at 315 (holding that “when the transferee venue is
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`not clearly more convenient than the venue chosen by the plaintiff, the plaintiff’s choice should
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`be respected.”) (emphasis added).
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`At minimum, given that Apple has its second largest campus in WDTX, has thousands of
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`employees within the District, manufactures accused products within the District (e.g., Flex), and
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`many of its suppliers have a significant presence within the District (e.g., Cypress Semiconductor,
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`Maxim Integrated, Samsung Electronics, Cirrus Logic, Intel, Microchip Technology, Micron
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`Technology, NXP Semiconductor, Qualcomm, Renesas Electronics, SK Hynix,
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`STMicroelectronics, and Taiwan Semiconductor Manufacturing,),3 the Court does not expect that
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`another district in the country will be frequently “clearly more convenient” than WDTX.
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`But given that Apple has filed several motions to transfer, despite needing to show that the
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`transferee is “clearly more convenient,” given that Apple has filed multiple petitions for writ of
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`mandamus, given that Apple has several thousand employees and its second largest campus in the
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`District, and given that Apple has closed its stores in the Eastern District of Texas (“EDTX”) (thus
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`making venue improper in EDTX), it appears that Apple is attempting to essentially change the
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`venue laws such that it cannot be sued in Texas, but rather that it can only be sued in NDCA. In
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`other words, if district courts or the Federal Circuit consistently find that a particular transferee
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`forum is consistently “clearly more convenient” than the transferor forum for a corporation like
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`Apple, then the only place where that corporation can be sued is the transferee forum where its
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`primary headquarters is located. Not only is this not the law in the Fifth Circuit, it effectively—
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`but incorrectly—transmutes plaintiff’s choice of forum into defendant’s choice of forum. See
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`Norwood v. Kirkpatrick, 349 U.S. 29, 31 (1955) (“[p]laintiffs are generally afforded the privilege
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`3 Supplier List, Apple.com, https://www.apple.com/supplier-responsibility/pdf/Apple-Supplier-List.pdf (last visited
`May 20, 2020).
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`of bringing an action where he chooses.”); see also Van Dusen, 376 U.S. at 622 (stating the purpose
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`of 1404 “ . . . militates against restricting the number of permissible forums within the federal
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`system.”). Nothing would be more restrictive than limiting the number of available forums to
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`solely where a defendant’s primary headquarters is located.
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`C. Uniloc v. Apple
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`Uniloc and Apple are no strangers in the courtroom. Since 2016, Uniloc has filed two dozen
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`patent infringement cases against Apple in either the Eastern or Western Districts of Texas. Apple
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`heavily bases its arguments on the fact that, of the twenty-four previous suits between the two
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`parties, twenty-one were transferred to NDCA. ECF No. 15 at 3–4.
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`In its briefing and during the hearing, Apple attempts to make much of the fact that Judges
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`Gilstrap and Yeakel transferred several Uniloc v. Apple cases from the Eastern and Western
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`Districts of Texas to NDCA in 2017 and 2019, respectively. But, as the Court noted during the
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`hearing, decisions by Judges Gilstrap and Yeakel are not binding on this Court. See Tr. 7:1–17,
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`9:1–5. Therefore, the fact that other Texas judges transferred other Uniloc cases from Texas to
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`NDCA is—at the most—only persuasive evidence. But the Court is not persuaded by the reasoning
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`supporting those transfers for the reasons that follow.
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`1. The Court is not bound by prior discretionary decisions
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`First, by arguing that this Court should follow what Judges Gilstrap and Yeakel decided,
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`Apple effectively seeks to short-circuit the transfer analysis by asking this Court to blindly follow
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`what other Texas judges did in other cases at a different point in time, despite having a different
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`sets of facts. But because analyzing transfer motions is a fact-intensive inquiry, the Court cannot
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`just “follow the crowd,” in lieu of undertaking its own independent analysis. Van Dusen, 376 U.S.
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`at 622 (stating § 1404’s purpose is an “individualized, case-by-case consideration of convenience
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`and fairness”).
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`2. There are significant differences with respect to Apple and Apple’s suppliers in
`the Eastern District of Texas and the Western District of Texas
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`The first dozen cases between Uniloc and Apple were filed in EDTX, where they were
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`subsequently transferred to NDCA. Although Judge Gilstrap did not analyze each factor in depth
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`in every order to demonstrate which factors weighed in favor of transfer, there are several
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`distinguishing features of WDTX that separate the present case from the EDTX cases. First, the
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`most important feature is that Apple has a significant presence in WDTX through its large campus,
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`manufacturing activities, and numerous stores in the forum. More specifically, Apple engages in
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`engineering and manufacturing with approximately 5,000 employees at its large campus in Austin,
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`with another 2,000 employees within the city. By contrast, Apple does not have any presence in
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`EDTX by virtue of closing down its only two stores in April of 2019.4 Thus, with respect to Apple,
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`EDTX is not only less convenient, but venue is also improper in EDTX. Accordingly, even if
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`venue were proper in EDTX, WDTX is significantly more convenient for Apple than EDTX
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`because there are more potential documents, more potential witnesses, and a potentially lower cost
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`of attendance for those witnesses. Furthermore, the City of Austin, Travis County, and Williamson
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`County’s grant of tax subsidies to Apple for its significant presence indicate that there is an
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`extremely strong local interest in any Apple-related litigation, especially as compared to EDTX.5
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`4 Chaim Gartenberg, Apple is reportedly closing two stores in a Texas district to avoid patent trolls, THE VERGE:
`CIRCUITBREAKER (Feb. 22, 2019) https://www.theverge.com/circuitbreaker/2019/2/22/18236424/apple-closing-
`stores-eastern-district-texas-avoid-patent-trolls (last visited June 9, 2020).
`5 Jay Wallis, Christy Millweard, Apple getting big tax rebate from Williamson County with Austin Expansion,
`KVUE.com
`(Dec. 18, 2019), https://www.kvue.com/article/news/local/apple-could-get-big-tax-break-from-
`williamson-county-with-austin-expansion/269-623955430 (last visited June 18, 2020); see also Cindy Widner, How
`Apple
`landed
`the
`Apple
`deal,
`CURBED
`AUSTIN
`(Dec.
`14,
`2018),
`https://austin.curbed.com/2018/12/14/18141017/austin-apple-incentives-taxes-city-state-county (last visited June 18,
`2020 (stating that Apple received state subsidies to build Austin campus location).
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`Second, Apple, through its contract manufacturer Flextronics, manufactures the accused
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`products in the District. To the extent that Flextronics has relevant documents, these documents
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`can be more easily accessed in WDTX as compared to accessing those documents in EDTX.
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`Similarly, if any Flextronics employees were to testify at trial, there is a potentially lower cost of
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`attendance in WDTX as compared to EDTX. Finally, because of companies like Flextronics,
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`WDTX has potentially a greatest local interest than EDTX.
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`Third, in addition to manufacturing partners, Apple also receives components for many of
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`its products from suppliers that are within WDTX and not EDTX. These suppliers, such as Cirrus
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`Logic, Intel, NXP Semiconductor, and Qualcomm, have design centers and manufacturing centers
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`in Austin. As such, as compared to EDTX, the relative ease of access to sources of proof, the
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`availability of compulsory process, the cost of attendance for willing witnesses, and the localized
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`interest are significantly higher in WDTX, if these companies are relevant to a particular litigation.
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`Fourth, some standards certification organizations are located within WDTX. Ct. Order at
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`15–16, STC.UNM v. Apple, No. 1:20-cv-00351-ADA, (W.D. Tex Apr. 1, 2020), ECF No. 59.
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`Therefore, as compared to EDTX, the relative ease of access to sources of proof, the availability
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`of compulsory process, the cost of attendance for willing witnesses, and the localized interest are
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`significantly higher in WDTX because of presence of these standards certification organizations.
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`The above facts indicate that WDTX is more convenient than EDTX, with respect to Apple,
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`for the following public and private factors: (1) relative ease of access to sources of proof, (2)
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`availability of compulsory process to secure the attendance of witnesses (e.g., for Flextronics,
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`NXP, and Wi-Fi Alliance personnel), (3) cost of attendance for willing witnesses, and (4) local
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`interest. Therefore, logic dictates that even if NDCA is “clearly more convenient” than EDTX,
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`because of these facts, NDCA is not also immediately per se “clearly more convenient” than
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`WDTX. As such, the Court rejects Apple’s argument that the Court should follow Judge Gilstrap’s
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`lead in transferring the case to NDCA.
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`3. Apple Has a Bigger Presence in Austin
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`Similarly—but for different reasons—the Court also rejects Apple’s argument that the
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`Court should follow Judge Yeakel’s lead in transferring the case to NDCA. The fatal flaw with
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`Apple’s argument is that it ignores Apple’s explosive growth in the timeframe between when the
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`Uniloc cases were filed in Judge Yeakel’s court and when they were filed in this Court.
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`Apple has significantly increased its presence in WDTX in the past few years. For example,
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`7,000 Apple employees work in Austin as of November 2019 which represents an increase from
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`6,200 employees as of December 2018 and more than a 50% increase in the previous five years.6
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`More importantly, this growing number of employees indicates an increase in the number of Apple
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`engineers in Austin.7 Furthermore, on December 13, 2018, i.e., in the time between the filings of
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`the previous WDTX cases (February, April, and November 2018) and the filing of the instant case
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`(September 10, 2019), Apple announced the construction of a new campus to accommodate an
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`additional 5,000 new employees, with the ability to have a total of 15,000 employees in WDTX.
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`See Apple Expands in Austin, supra, note 6 at 11. This new campus will include a 192-room hotel
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`to house Apple employees who presumably travel to Austin for work.8 When completed, Apple’s
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`new campus will comprise three million square feet, including two million square feet of office
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`space, which would make it one of the world’s largest office buildings. Id. As an incentive to build
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`6 See Apple Expands in Austin, Apple.com, https://apple.com/newsroom/2019/11/apple-expands-in-austin/ (last
`visited June 10, 2020); see also Apple to Build New Campus in Austin and Add Jobs Across the US, Apple.com,
`https://apple.com/newsroom/2018/12/apple-to-build-new-campus-in-austin-and-add-jobs-across-the-us/ (last visited
`June 10, 2020).
`7See, e.g., Lori Hawkins, Apple Dives Deeper into Austin’s Talent Pool, AUSTIN AMERICAN-STATESMAN,
`https://www.statesman.com/news/20160907/apple-dives-deeper-into-austins-talent-pool (last visited June 3, 2020).
`8 Michael Potuck, Apple plans big upgrade to new $1B Austin campus with 192-room hotel, 9TO5Mac.com,
`https://9to5mac.com/2020/05/20/apple-austin-campus-hotel-upgrade/ (last visited June 18, 2020).
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`this new campus, Apple received tax breaks from Williamson County for building such a large
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`campus and employing thousands of people. See Apple getting big tax rebate from Williamson
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`County with Austin expansion, supra, note 5 at 9. The building of the new campus is a continuation
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`of Apple’s partnership with the Austin area that has existed for thirty years.9
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`In addition to an increase in the number of employees generally, and engineers specifically,
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`the number of people engaged in Apple-related manufacturing is larger now than it was when the
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`previous cases were filed. See Apple Expands in Austin, supra, note 6, at 11. For example, just
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`days after this lawsuit was filed, Apple announced that its newly redesigned Mac Pro will be
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`manufactured in Austin, at the same Austin facility where Mac Pros have been made since 2013.10
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`The 240,000 square foot Flextronics plant employs about 500 employees and Apple has reportedly
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`invested more than $200,000,000 in the facility. See id.
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`It is significant to this Court that Apple presently employs approximately 8,000 people in
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`WDTX and that its second largest campus is in this District. It is equally important to the Court
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`that Apple is currently building an additional $1 billion facility in Austin to accommodate 5,000-
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`15,000 additional employees and that, when completed, Apple will be the one of the largest private
`
`employers in the entire District, if not the largest. The thousands of employees who are and will
`
`be working at Apple in this District are performing a “broad range of functions including
`
`engineering, R&D, operations, finance, sales and customer support.” ECF No. 38, Ex. 5, Jaynes
`
`Depo. at 35:18–36:8; Ex. 6. Furthermore, it is also important that Apple has expanded and invested
`
`in its contract manufacturing facility in this District.
`
`
`9 Kirk Silas, Apple’s Austin Offices and Headquarters: History, Details, and Predictions, AQUILA,
`https://aquilacommercial.com/learning-center/apple-austin-offices-headquarters-history-details-predictions/
`(last
`visited June 18, 2020).
`10 See Apple’s new Mac Pro to be made in Texas, Apple.com, https://www.apple.com/newsroom/2019/09/apples-new-
`mac-pro-to-be-made-in-texas/ (last visited June 10, 2020);
`
`
`
`12
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`Case 6:19-cv-00532-ADA Document 72 Filed 06/22/20 Page 13 of 34
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`Apple’s significant growth, and its announcements of planned future growth (as well as the
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`associated tax incentives), in the timeframe between when the prior WDTX cases were filed and
`
`when the current case was filed dramatically change the transfer analysis. For example, a larger
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`number of employees—especially engineers—in Austin means that more documents and
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`engineers are more likely to be physically located in Austin. Thus, at minimum, the relative ease
`
`of access to sources of proof is likely to weigh less heavily towards NDCA, if not even weigh
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`neutrally or against transfer. As another example, given the increased likelihood of local Apple
`
`employees testifying at trial, as well as the fact that Apple is building its own hotel, the cost of
`
`attending a trial in the Austin division of WDTX may also weigh against transfer. Finally, given
`
`that Apple is one of the largest employers in the District, WDTX has a much higher localized
`
`interest that it previously did, to the point that this factor may weigh against transfer.
`
`4. There are significant factual differences between the prior Western District
`cases and this case
`
`Finally, there are critical differences, unrelated to Apple, between the instant case and the
`
`prior WDTX cases. For example, the inventors of the patents-in-suit of the prior cases lived in
`
`California, whereas the inventors in the current case live in New York. Based on the Court’s
`
`experience, inventor testimony is one of the most critical witnesses that will testify live at trial. As
`
`such the inventors being located closer to WDTX is a significant fact that weighs against transfer
`
`with respect to the cost of attendance for willing witnesses factor.
`
`Another significant difference are the quantity and significance of third parties. Third party
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`witnesses are one of the biggest factors in the transfer analysis. For example, in the prior WDTX
`
`cases, Apple identified key third parties (Intel and Qualcomm) that might have relevant
`
`information. See, e.g., Uniloc USA, Inc. et al v. Apple Inc, 1-18-cv-00166 (W.D. Tex. February
`
`
`
`13
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`Case 6:19-cv-00532-ADA Document 72 Filed 06/22/20 Page 14 of 34
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`22, 2018). By contrast, there are no comparable third-parties in this case which may have as many
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`documents as Intel and Qualcomm reasonably could have had in the prior cases.
`
`This case also includes two potentially relevant third parties, Fortress and Flextronics.
`
`Fortress is an investment firm based in San Francisco and the parent company of Uniloc.11
`
`Flextronics is a manufacturer in Austin, Texas. But unlike prior cases where relevant activity for
`
`both third-parties, e.g., Intel and Qualcomm, are in NDCA, the relevant activity for Fortress and
`
`Flextronics are split between NDCA and WDTX, respectively. Because there is a third party in
`
`both the transferor and transferee districts, the relative ease of access to sources of proof factor,
`
`the availability of compulsory process, the cost of attendance for willing witnesses each may not
`
`weigh in favor of transfer, as it did in the prior cases.
`
`Time-to-trial is another important distinction between the prior cases and the current case.
`
`In the prior cases, Judge Yeakel decided that the time to trial did not favor one venue over the
`
`other. See Uniloc USA Inc., et al. v. Box, Inc., No. 1:17-CV-754-LY, 2018 WL 2729202, at *4
`
`(W.D. Tex. June 6, 2018). Prior to this Court taking the bench, the average time from filing to trial
`
`for patent cases in WDTX was approximately 32 months. Fintiv v. Apple, No. 6:19-cv-372-ADA,
`
`2019 WL 4743678, at *7 (W.D. Tex. Sept. 13, 2019); see also ECF No. 38 at 18 (stating that the
`
`median time interval for civil cases in WDTX is 25.4 months). The time from filing to trial in this
`
`case will be 18.4 months. As such, the time to trial in this case is now 13.6 months (42.5%) faster
`
`than when Judge Yeakel transferred the prior cases to NDCA. Therefore, the Court rejects Apple’s
`
`argument that the Court should follow Judge Yeakel’s lead in transferring the case to NDCA.
`
`
`
`
`
`
`11 Because Fortress is Uniloc’s parent company, it seems a lot less likely that compulsory process will be required to
`compel documents and testimony from Fortress, at least as compared to Flextronics.
`
`
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`14
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`Case 6:19-cv-00532-ADA Document 72 Filed 06/22/20 Page 15 of 34
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`IV. ANALYSIS
`
`The threshold step for a Court to determine in the 1404 analysis is whether this case could
`
`have been brought in NDCA. The parties agree that venue is proper in NDCA.
`
`A. The Private Interest Factors Weigh Against Transfer.
`
`1. The Relative Ease of Access to Sources of Proof
`
`“In considering the relative ease of access to proof, a court looks to where documentary
`
`evidence, such as documents and physical evidence, is stored.” Fintiv, 2019 WL 4743678, at *2.
`
`“[T]he question is relative ease of access, not absolute ease of access.” In re Radmax, 720 F.3d
`
`285, 288 (5th Cir. 2013) (emphases in original). Here, the location of relevant evidence, both from
`
`Apple and critical third parties, weighs slightly in favor of transfer for the following reasons.
`
`Uniloc’s sources: Apple contends that Uniloc has several sources of proof in NDCA,
`
`including executives, engineers, and management offices.12 ECF No. 15 at 10. Apple further
`
`contends that Uniloc does not have any physical presence in WDTX. Id.
`
`Uniloc responds by stating that Apple’s focus on Uniloc’s employees in this factor is
`
`flawed, since witnesses are not sources of proof. ECF No. 38 at 4. Uniloc cites Seven Networks,
`
`LLC v. Google LLC, which states that sources of proof are “sources of documentary and physical
`
`evidence.” No. 2:17-CV-442, 2018 U.S. Dist. LEXIS 146375, at *13 (E.D. Tex. Aug. 14, 2018).
`
`Uniloc contends that it stores physical,