Case 6:21-cv-00620-ADA Document 40 Filed 05/04/22 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`XR COMMUNICATIONS, LLC, dba,
`VIVATO TECHNOLOGIES,
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`APPLE, INC.,
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`Defendant.
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`Plaintiff,
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`v.
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`Case No. 6:21-cv-00620-ADA
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`XR’S CORRECTED OPPOSITION TO APPLE’S MOTION TO TRANSFER VENUE
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`Case 6:21-cv-00620-ADA Document 40 Filed 05/04/22 Page 2 of 19
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`TABLE OF CONTENTS
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`Page(s)
`INTRODUCTION ................................................................................................................. 1
`I.
`II. LEGAL STANDARD ........................................................................................................... 1
`III. Apple Has Not Met Its Significant Burden to Show that NDCal Is Clearly More
`Convenient than This District ................................................................................................ 2
`A. The Private Interest Factors Weigh Against Transfer .................................................. 2
`1.
`The relative ease of access to sources of proof does not favor transfer ............. 2
`a. Apple’s documents are not stored in NDCal and are accessible anywhere
`with an internet connection ......................................................................... 2
`b. Third-party documents relating to the accused Mac Pro are located in
`Austin and weigh against transfer ............................................................... 4
`The availability of compulsory process to secure the attendance of
`witnesses does not favor transfer ........................................................................ 4
`The witnesses will not be inconvenienced by travel to WDTex ........................ 6
`a. Apple’s party witnesses should be given little weight ................................ 6
`b. The other identified witnesses do not favor transfer ................................... 9
`Practical considerations relating to judicial economy strongly weigh
`against transfer .................................................................................................... 9
`B. The Public Interest Factors Weigh Against Transfer ................................................. 12
`1. Court congestion weighs against transfer ......................................................... 12
`2.
`The local interest in having localized interests decided at home is neutral ...... 12
`3. Apple admits that the other public interest factors are neutral and do not
`favor transfer ..................................................................................................... 13
`IV. CONCLUSION .................................................................................................................... 13
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`2.
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`3.
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`4.
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`i
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`Case 6:21-cv-00620-ADA Document 40 Filed 05/04/22 Page 3 of 19
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`TABLE OF AUTHORITIES
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`
`
`Cases
`AGIS Software Dev. LLC v. HTC Corp.,
`No. 2:17-CV-00514-JRG, 2018 WL 4680558 (E.D. Tex. Sept. 28, 2018) ................................ 2
`BillJCo, LLC v. Apple Inc.,
`No. 6:21-CV-00528-ADA, 2022 WL 607890 (W.D. Tex. Mar. 1, 2022) ......................... passim
`CPC Patent Technologies Pty Ltd. v. Apple Inc.,
` No. 6:21-cv-00165-ADA, Dkt. 82 (W.D. Tex. Feb. 8, 2022) ........................................... passim
`EcoFactor, Inc. v. Vivint, Inc.,
`No. 6-20-CV-00080-ADA, 2021 WL 1535414 (W.D. Tex. Apr. 16, 2021) .............................. 2
`In re Atlassian Corp. PLC,
` No. 2021-177, 2021 WL 5292268 (Fed. Cir. Nov. 15, 2021) ................................................... 3
`In re Google Inc.,
`412 Fed. Appx. 295 (Fed. Cir. 2011) ........................................................................................ 10
`In re Intel Corp.,
`No. 2021-168, 2021 WL 4427875 (Fed. Cir. Sept. 27, 2021) .................................................... 9
`In re Vistaprint Ltd.,
`628 F.3d 1342 (Fed. Cir. 2010)................................................................................................... 2
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) ...................................................................................................... 2
`In re Volkswagen of Am., Inc.,
`566 F.3d 1349 (Fed. Cir. 2009)................................................................................................. 10
`In re W. Digital Techs., Inc.,
` No. 2021-137, 2021 WL 1853373 (Fed. Cir. May 10, 2021) .................................................. 12
`In re: NetScout Sys., Inc.,
` No. 2021-173, 2021 WL 4771756 (Fed. Cir. Oct. 13, 2021) ................................................... 11
`Koss Corp. v. Apple Inc.,
`No. 6-20-CV-00665-ADA, 2021 WL 5316453 (W.D. Tex. Apr. 22, 2021) .............................. 8
`Monolithic Power Sys., Inc. v. Meraki Integrated Cir. (Shenzhen) Tech., Ltd.,
` No. 6:20-CV-00876-ADA, 2021 WL 5316454 (W.D. Tex. Nov. 5, 2021) ............................... 4
`Monterey Rsch., LLC v. Broadcom Corp.,
`No. W-21-CV-00542-ADA, 2022 WL 526242 (W.D. Tex. Feb. 21, 2022) ........................ 4, 5,7
`PersonalWeb Techs., LLC v. NEC Corp. of Am., Inc.,
`No. 6:11-CV-655, 2013 WL 9600333 (E.D. Tex. Mar. 21, 2013) ........................................... 10
`SynKloud Techs., LLC v. Dropbox, Inc.,
`No. 6:19-CV-00525-ADA, 2020 WL 2494574 (W.D. Tex. May 14, 2020) ............................ 10
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`SynKloud Techs., LLC v. Dropbox, Inc.,
`No. 6:19-CV-00526-ADA, 2020 WL 2528545 (W.D. Tex. May 18, 2020) .............................. 9
`Texas Data Co., LLC v. Target Brands, Inc.,
`771 F. Supp. 2d 630 (E.D. Tex. 2011) ........................................................................................ 2
`Uniloc 2017 LLC v. Apple Inc.,
`No. 6:19-CV-00532-ADA, 2020 WL 3415880 (W.D. Tex. June 22, 2020) ....................... 2, 13
`USA, Inc. v. Apple Inc.,
`No. A-18-CV-992-LY, 2019 WL 2035583 (W.D. Tex. Apr. 8, 2019) ..................................... 13
`XR Communications, LLC v. Ruckus Wireless, Inc.,
`No. 5:21-cv-04679-WHO, Dkt. 33 (N.D. Cal. Nov. 16, 2021) ................................................ 11
`Statutes
`§ 1404(a) ......................................................................................................................................... 1
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`Case 6:21-cv-00620-ADA Document 40 Filed 05/04/22 Page 5 of 19
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`I.
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`INTRODUCTION
`Defendant Apple Inc. (“Apple”) has failed to meet its significant burden to show that the
`Northern District of California (“NDCal”) is clearly more convenient than this District. Apple
`attempts to minimize the interest of the Western District of Texas (“WDTex”) contrary to the
`actual facts of this case, including that (1) Apple has multiple campuses in and around Austin,
`Texas and currently has about 7,000 employees in these campuses; (2) Apple has been building a
`new $1 billion, 3-million-square-foot campus in Austin for several years that is expected to open
`this year and house up to 15,000 employees; (3) Apple manufactures the Mac Pro (one of the
`products accused of infringement) in Austin; (4) Apple’s relevant documents and records are easily
`accessible anywhere with an internet connection; (5) at least one of the named inventors of the
`’235 patent is in WDTex; and (6) there are seven other cases involving the same patent and wireless
`technology pending before this Court.
`Indeed, while Apple claims that the bulk of its witnesses and evidence is in NDCal, the
`deposition of Apple’s declarant, Mark Rollins, revealed that this information is incomplete at best.
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`Apple’s
`failure to conduct a proper investigation to determine whether relevant witnesses and documents
`are in WDTex falls far short of its burden on a motion to transfer, especially when weighed against
`this District’s strong ties to this case.
`Apple’s motion should be denied.
`LEGAL STANDARD
`To prevail on a motion to transfer under § 1404(a), there is a “significant burden on the
`movant to show good cause for the transfer.” In re Volkswagen of Am., Inc., 545 F.3d 304, 314
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`II.
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`n.10 (5th Cir. 2008)1; Texas Data Co., LLC v. Target Brands, Inc., 771 F. Supp. 2d 630, 638 (E.D.
`Tex. 2011) (“[T]he Court, in accordance with the Fifth Circuit, recognizes the significance of the
`burden and does not take it lightly”). This burden “falls squarely on the moving party,” who cannot
`simply show that “the alternative venue is more convenient, but that it is clearly more convenient.”
`EcoFactor, Inc. v. Vivint, Inc., No. 6-20-CV-00080-ADA, 2021 WL 1535414, at *2 (W.D. Tex.
`Apr. 16, 2021) (citing In re Vistaprint Ltd., 628 F.3d 1342, 1346 (Fed. Cir. 2010), Volkswagen II,
`545 F.3d at 314 n.10). “Absent such a showing, the plaintiff’s choice of venue should be
`respected.” AGIS Software Dev. LLC v. HTC Corp., No. 2:17-CV-00514-JRG, 2018 WL 4680558,
`at *3 (E.D. Tex. Sept. 28, 2018).
`In evaluating good cause for transfer, courts consider private and public interest factors,
`discussed below, none of which are dispositive. EcoFactor, 2021 WL 1535414, at *1. “[T]he court
`may consider undisputed facts outside of the pleadings such as affidavits or declarations, but it
`must draw all reasonable inferences and resolve factual conflicts in favor of the non-moving
`party.” AGIS, 2018 WL 4680558, at *3.
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`III. Apple Has Not Met Its Significant Burden to Show that NDCal Is Clearly More
`Convenient than This District
`A.
`The Private Interest Factors Weigh Against Transfer
`1.
`The relative ease of access to sources of proof does not favor transfer
`a.
`Apple’s documents are not stored in NDCal and are accessible
`anywhere with an internet connection
`As in most modern patent cases, the relevant documents and records in this case will consist
`primarily, if not exclusively, of electronically stored documents. See Uniloc 2017 LLC v. Apple
`Inc., No. 6:19-CV-00532-ADA, 2020 WL 3415880 at *9 (W.D. Tex. June 22, 2020) (“[A]ccess
`to documents that are available electronically provide little benefit in determining whether a
`particular venue is more convenient than another.”); CPC Patent Technologies Pty Ltd. v. Apple
`Inc., No. 6:21-cv-00165-ADA, Dkt. 82 at 5–6 (W.D. Tex. Feb. 8, 2022) (quoting In re Atlassian
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`1 All quotations cleaned up and emphases added unless otherwise noted.
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`Corp. PLC, No. 2021-177, 2021 WL 5292268, at *2 (Fed. Cir. Nov. 15, 2021)) (“Although the
`physical location of electronic documents affects the outcome of this factor, ‘electronic storage
`makes documents more widely accessible.’”). And while the location where electronic documents
`are stored is nonetheless a relevant consideration under this factor, it appears that Apple’s
`documents are not even stored in NDCal.
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`But as this Court recently
`noted, the “imprecision” of these representations “encompasses a scenario in which Apple’s
`documents are not located in the NDCA at all, but are merely accessible there.” BillJCo, LLC v.
`Apple Inc., No. 6:21-CV-00528-ADA, 2022 WL 607890, at *3 (W.D. Tex. Mar. 1, 2022).
`In fact,
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` See AGIS, 2018 WL 4680558, at *3 (reasonable
`inferences and factual conflicts should be resolved in favor of the non-moving party). Apple should
`not be permitted to tip the scales in favor of transfer by ignoring relevant documents in this District
`simply
` Mr. Rollins’s vague and misleading testimony falls far short
`of Apple’s burden to prove that NDCal is clearly more convenient.
`In any event, regardless of the physical location of Apple’s servers,
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`2 Apple presents no evidence or argument
`that it has physical or electronic documents relevant to this case that are more accessible from
`NDCal than WDTex. Thus, the location of Apple’s relevant documents is neutral and does not
`favor transfer.
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`b.
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`Third-party documents relating to the accused Mac Pro are
`located in Austin and weigh against transfer
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` Ex. 2.
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` And as previously
`found by this Court, “[t]his third party is likely to have electronic documents, such as technical
`documents needed to assemble the accused product.” See CPC, Dkt. 82 at 8. This weighs against
`transfer. At the very least, the presence of the third-party manufacturer’s documents in this District
`offsets
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`In sum, because Apple’s relevant documents are not stored in NDCal, are equally
`accessible in Austin, and third-party documents are located here in WDTex, this factor weighs
`against transfer.
`2.
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`The availability of compulsory process to secure the attendance of
`witnesses does not favor transfer
`Apple has failed to show that compulsory process is more available in NDCal than WDTex.
`Indeed, many of third-party witnesses identified by Apple do not even live in NDCal. For instance,
`Apple relies on the fact that 3 of the 11 named inventors of the ’235 patent are purportedly located
`in California. But the evidence provided by Apple in support of this contention is questionable at
`best. For example, Exhibit G to its motion merely shows public search results for the name Praveen
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`2 Source code evidence is irrelevant in any event, as it is only made available to counsel and
`experts, “whose convenience is not considered.” Monolithic Power Sys., Inc. v. Meraki Integrated
`Cir. (Shenzhen) Tech., Ltd., No. 6:20-CV-00876-ADA, 2021 WL 5316454, at *4 (W.D. Tex. Nov.
`5, 2021); see also BillJCo, 2022 WL 607890, at *4 (“To the extent Apple demands that source
`code inspection occur exclusively in the NDCA, it is unclear why the convenience analysis should
`consider that. Such confidentiality restrictions affect only [plaintiff’s] technical expert and
`counsel; their convenience is accorded little to no weight in the § 1404(a) analysis.”); Monterey
`Rsch., LLC v. Broadcom Corp., No. W-21-CV-00542-ADA, 2022 WL 526242, at *3 (W.D. Tex.
`Feb. 21, 2022) (giving no weight to the location of Broadcom’s source code).
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`Mehrotra, and there are 8 possible matches. Apple did not do any investigation to determine which
`of these 8 Praveen Mehrotras, if any, is the correct individual. Rather, Apple simply assumes that
`the one who is shown to have a location in San Jose must be correct because his profile also lists
`Spokane, Washington (the location listed on the ’235 patent). This is not reliable evidence.
`In addition, the LinkedIn profile provided at Exhibit F, which supposedly proves that Hujun
`Yin lives in San Jose, California, no longer exists. And none of the Hujun Yin profiles currently
`available on LinkedIn show a location in NDCal. Thus, of the 3 inventors relied upon by Apple,
`only one appears to actually live in NDCal (Siavash Alamouti). Moreover, his presence in NDCal
`is more than offset by the fact that, as Apple admits, this Court has subpoena power over inventor
`Marcus Da Silva, in addition to the at least six other inventors that are outside the subpoena power
`of NDCal. Mot. at 7.
` as unwilling witnesses requiring
`Apple also generally identifies
`compulsory process. Mot. at 5. But the presence of these witnesses in NDCal is offset by the
`employees of Apple’s Austin-based manufacturer of the accused Mac Pro, whom Apple simply
`ignores. As recognized by this Court, “the third-party manufacturer is likely to testify about
`technical information or assembly information that is relevant to infringement and production
`information that may affect damages,” which “strongly weighs against transfer.” CPC, Dkt. 82 at
`9–10.
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`Apple’s reliance on Ken Biba should be given no weight.
` Chan Decl. ¶ 4.
`Apple’s reliance on prosecuting attorneys Glen Nuttall, Vladislav Teplitskiy, and Nicholas
`Transier—even assuming they have relevant knowledge and are necessary for trial, which is highly
`unlikely—should also be given no weight. As Apple admits, these witnesses are located in
`Southern California (Mot. at 7 & Apple’s Ex. D), not NDCal.
`Finally, Apple’s reliance on Michael Haycox and Chris Thomas, Vivato shareholders who
`were members of an LLC that was responsible for valuing Vivato’s patent portfolio as part of a
`transaction in 2008 (Mot. at 7), should be given no weight. The LLC in question, Western Property
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`Holdings, is an Oregon company and thus outside the subpoena power of NDCal. The Managing
`Member of the LLC has a listed address in Oregon, which is also outside NDCal. In addition,
`Michael Haycox appears to live in Palmdale, California, which is in Southern California, not
`NDCal. While it appears that Chris Thomas may reside in NDCal, his purported knowledge
`regarding the value of the ’235 patent is tenuous at best. Indeed, Apple has not given any indication
`that it intends to even depose Mr. Thomas, much less call him as a witness at trial. Apple should
`not be permitted to cherry pick third-party witnesses within its preferred forum, while at the same
`time ignoring other potentially relevant witnesses who do not reside in NDCal.
`On balance, this factor is neutral at best.
`3.
`The witnesses will not be inconvenienced by travel to WDTex
`a.
`Apple’s party witnesses should be given little weight
`Apple identifies 4 party witnesses in NDCal as having relevant knowledge about the case.
`Those witnesses are identified and described in the declaration of Mark Rollins, who is employed
`as a Finance Manager at Apple. Importantly, however, Mr. Rollins’s testimony was not based on
`his personal knowledge.
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`Nor did Mr. Rollins even attempt to discern whether relevant witnesses were actually
`within NDCal.
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`truth is, Mr. Rollins cannot say for sure whether there are employees with relevant knowledge at
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`Apple’s Austin location because he did not speak with anyone in Austin. And based on public
`information alone, it appears that there are. This is supported by
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` Apple should not be permitted to ignore
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`relevant witnesses in WDTex simply
`In sum, Mr. Rollins’s testimony that there are no relevant willing witnesses in Texas is
`simply not reliable. Rather than conducting an investigation to determine who the persons with
`relevant knowledge are, and where they are located, he started with a list of a few individuals
`handpicked by counsel—conveniently located in Apple’s preferred forum—and spoke only to the
`people on that list. He did not independently investigate whether there are other witnesses with
`relevant knowledge in Texas, or in locations more convenient to WDTex than NDCal, such as
`Florida, where Apple has other engineers. Accordingly, Apple’s identified witnesses should be
`given little weight. See Broadcom, 2022 WL 526242, at *6–8 (finding declarant was not a credible
`witness where his investigation was “circumspect and superficial” and started with the “errant
`assumption” that “employees involved in the research and design of the accused products are
`“probably all in California,” and where the declarant added “mitigating phrases to reduce the
`importance of any potential Texas witnesses”).
`Moreover, any alleged inconvenience to Apple’s employee witnesses is greatly reduced by
`Apple’s substantial presence in this District. As this Court very recently found in denying transfer
`of another Apple case:
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`Apple’s increasing footprint in this District reduces any inconvenience upon Apple
`personnel traveling from Cupertino. Apple plans to add to its existing space in Austin by
`constructing a 3-million-square-foot Austin campus, including a 192-room hotel meant to
`house Apple employees traveling for work. See Koss Corp. v. Apple Inc., No. 6-20-CV-
`00665-ADA, 2021 WL 5316453, at *9 (W.D. Tex. Apr. 22, 2021). That new facility is
`scheduled to open in 2022, well before trial is scheduled in this Action. This Court strongly
`believes that the convenience of this new Austin facility, along with its existing Austin
`facilities, greatly minimizes the time that Apple’s employees are removed from their
`regular work responsibilities. Additionally, travel time from this work site to the Court
`facility would be comparable, if not less, than the travel time from Apple employees
`California work sites to a NDCA courthouse. Id.
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`Case 6:21-cv-00620-ADA Document 40 Filed 05/04/22 Page 13 of 19
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`BillJCo, 2022 WL 607890, at *7; see also CPC, Dkt. 82 at 10 (“Courts properly give more weight
`to the convenience of non-party witnesses than to party witnesses.”); Ex. 5.
`Because “Apple’s burgeoning Austin campus attenuates the inconvenience that a Waco
`trial visits upon Apple’s NDCA-based personnel,” id., in addition to the fact that there are likely
`witnesses in Austin with relevant knowledge, Apple’s employee witnesses should be given little
`weight. Indeed, the Federal Circuit has repeatedly denied mandamus petitions requesting transfer
`under similar circumstances. See, e.g., In re Apple Inc., 855 F. App’x 766, 767 (Fed. Cir. 2021)
`(denying mandamus where Apple had identified a “number of employee witnesses within the
`transferee venue,” but also had an office in Austin and potential witnesses in WDTex); In re
`Google LLC, 855 F. App’x 767, 768 (Fed. Cir. 2021) (affirming this Court’s decision denying
`transfer because Google had an Austin office with “one or more” potential witnesses); In re Intel
`Corp., No. 2021-168, 2021 WL 4427875, at *1 (Fed. Cir. Sept. 27, 2021) (denying mandamus
`where petitioner identified witnesses in the transferee forum but had operations in WDTex).
`b.
`The other identified witnesses do not favor transfer
`Apple’s assertions regarding the purported convenience of XR’s witnesses also do not
`support transfer. Each are willing to travel to this District, and this District would actually be more
`convenient given XR’s other cases in pending in this Court. Chan Decl. ¶¶ 2–3. See SynKloud
`Techs., LLC v. Dropbox, Inc., No. 6:19-CV-00526-ADA, 2020 WL 2528545, at *5 (W.D. Tex.
`May 18, 2020) (witnesses willing to travel to this District do not favor transfer).
`
`
` Chan Decl. ¶ 4. The other inventors have
`not been identified as willing witnesses and are outside of NDCal, and thus should not be given
`weight under this factor or the compulsory process factor.
`4.
`Practical considerations relating to judicial economy strongly weigh
`against transfer
`In considering transfer, courts “must consider all other practical problems that make trial
`of a case easy, expeditious and inexpensive.” SynKloud Techs., LLC v. Dropbox, Inc., No. 6:19-
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`CV-00525-ADA, 2020 WL 2494574, at *5 (W.D. Tex. May 14, 2020) (quoting Volkswagen II,
`545 F.3d at 314). “Particularly, the existence of duplicative suits involving the same or similar
`issues may create practical difficulties that will weigh heavily in favor or against transfer.”
`PersonalWeb Techs., LLC v. NEC Corp. of Am., Inc., No. 6:11-CV-655, 2013 WL 9600333, at *5
`(E.D. Tex. Mar. 21, 2013). Indeed, the Federal Circuit has made clear that the “existence of
`multiple lawsuits involving the same issues is a paramount consideration when determining
`whether a transfer is in the interest of justice.” In re Volkswagen of Am., Inc., 566 F.3d 1349, 1351
`(Fed. Cir. 2009); see also In re Google Inc., 412 Fed. Appx. 295, 296 (Fed. Cir. 2011) (“Courts
`have consistently held that judicial economy plays a paramount role in trying to maintain an
`orderly, effective, administration of justice and having one trial court decide all of these claims
`clearly furthers that objective.”); Vistaprint, 628 F.3d at 1346 n.3 (“[W]here there is a co-pending
`litigation . . . involving the same patent-in-suit, . . . pertaining to the same underlying technology
`and accusing similar services, . . . the Federal Circuit cannot say the trial court clearly abuses its
`discretion in denying transfer.” ).
`Here, there are 7 other cases pending before this Court involving the same patent: No.
`6:21-cv-00619-ADA against Amazon, No. 6:21-cv-00622-ADA against ASUSTeK, No. 6:21-cv-
`00625-ADA against Google, No. 6:21-cv-00626-ADA against Samsung, No. 6:21-cv-00646-ADA
`against Dell, No. 6:21-cv-00694-ADA against HP, and No. 6:21-cv-00695-ADA against
`Microsoft. And there is yet another case, No. 6:21-cv-00623-ADA against Cisco, that involves
`related patents with overlapping inventors. All of these cases involve wireless technology. Thus,
`all of the cases involve substantial overlap in issues of fact and law, including claim construction,
`validity, conception, reduction to practice, and damages issues, to name a few. As recognized by
`this Court, “[k]eeping these cases together promotes judicial efficiency and allows this Court to
`coordinate similar issues in Markman, invalidity, infringement, and trial.” CPC, Dkt. 82 at 13.
`Contrary to Apple’s assertions, the mere fact that the cases involve different defendants
`and different products does not negate the efficiencies that will be gained from having them all
`tried together in one forum. The underlying patent is the same, and all of the accused products
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`involve wireless technology. Accordingly, “similar discovery, evidence, proceedings, and trial will
`result.” Id. at 14. In addition, “coordinating claim construction and invalidity between the co-
`pending cases will promote efficiency.” Id. (citing Volkswagen, 566 F.3d at 1351); see also
`Vistaprint, 628 F.3d at 1344 (“[E]ven if trying these two related cases before the same court may
`not involve the same defendants and accused products, it does not appear on its face erroneous to
`conclude that maintaining these two cases before the same court may be beneficial from the
`standpoint of judicial resources.”); Intel, 2021 WL 4427875, at *3 (denying mandamus and
`holding that the district court “reasonably found that keeping the cases against Samsung and Intel
`before one court would preserve judicial economy and minimize the potential for inconsistent
`judgments”); Google, 855 F. App’x at 768.
`That a couple defendants in the other cases have filed motions to dismiss or transfer is
`irrelevant. These opposed motions are still pending and may not even be granted. Moreover, the
`Federal Circuit has rejected “reliance on considerations of judicial economy arising after the filing
`of the lawsuit or the transfer motion as irrelevant to the analysis.” In re: NetScout Sys., Inc., No.
`2021-173, 2021 WL 4771756, at *4 (Fed. Cir. Oct. 13, 2021).
`Finally, the fact that NDCal has been “handling three cases filed by XR against other
`defendants since 2018” (Mot. at 11) also does not favor transfer. As Apple admits, those cases
`concern different patents. Judgment has been entered in two of the cases, which are now closed
`and pending appeal. XR Communications, LLC v. Ruckus Wireless, Inc., No. 3:18-cv-01992-WHO,
`XR Communications, LLC v. Arris Solutions, Inc., No. 3:18-cv-02736-WHO. And the parties have
`filed a joint stipulation of dismissal in the third case. XR Communications, LLC v. Ruckus Wireless,
`Inc., No. 5:21-cv-04679-WHO, Dkt. 33 (N.D. Cal. Nov. 16, 2021). Thus, there are no efficiencies
`to be gained by transferring this case to NDCal. It makes far more sense to keep this case here and
`coordinate it with the 7 other active cases involving the ’235 patent.
`This factor strongly weighs against transfer.
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`B.
`
`The Public Interest Factors Weigh Against Transfer
`1.
`Court congestion weighs against transfer
`This factor concerns “[t]he speed with which a case can come to trial and be resolved.”
`BillJCo, 2022 WL 607890, at *8 (citing In re Genentech, Inc., 566 F.3d 1338, 1347 (Fed. Cir.
`2009)). And here, Apple admits that this case will proceed to trial faster in this District than in
`NDCal. Mot. at 14; see also Federal Court Management Statistics, available at
`https://www.uscourts.gov/file/41290/download. In denying another recent Apple motion to
`transfer, this Court has also relied on statistics showing that “the average time to trial in patent
`cases in the NDCA is now 45.2 months but 25.9 months in this District,” which is “consistent with
`data showing that this Court has brought patent cases to trial in approximately two years.” BillJCo,
`2022 WL 607890, at *8; see also CPC, Dkt. 82 at 15 (“[P]atent cases in NDCA expect to go to
`trial nearly three and a half years after the filing of the complaint.”). This “clear disparity in the
`time-to-trial statistics to show that this factor disfavors transfer.” Broadcom, 2022 WL 526242, at
`*15; see also In re W. Digital Techs., Inc., No. 2021-137, 2021 WL 1853373 (Fed. Cir. May 10,
`2021) (upholding transfer denial where this Court found that “the Western District of Texas was
`likely to be faster in adjudicating the matter than the Northern District of California”).
`Apple’s assertion that this factor is neutral belies its own statistics showing that trial is
`faster in this District. And while it is true that NDCal has fewer active patent cases, “[t]his Court
`has demonstrated its ability to quickly reach trial beyond speculation, even with a large case load.”
`CPC, Dkt. 82 at 15. This factor is not neutral. It weighs against transfer.
`2.
`The local interest in having localized interests decided at home does not
`favor transfer
`While it is true that NDCal has an interest in this case, so too does this District. Apple has
`a substantial—and expanding—presence in this District via its Austin offices and 7,000
`employees, including engineers, employed here. The accused Mac Pro is manufactured here in
`WDTex. And as previously found by this Court, this “third-party Mac Pro manufacturer in Austin
`will want to know if it is making a patented product, for example, to seek indemnity or other
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`assurances from Apple. Moreover, Plaintiff’s thousands of employees in Austin establishes its
`interest here as well.” CPC, Dkt. 82 at 16–17; see also BillJCo, 2022 WL 607890, at *9 (“This
`Court has previously found that this District houses Apple’s second largest U.S. campus, from
`which 6,000 Apple personnel work.”); Uniloc USA, Inc. v. Apple Inc., No. A-18-CV-992-LY, 2019
`WL 2035583, at *1 (W.D. Tex. Apr. 8, 2019) (“Apple also maintains places of business in Austin,
`Texas—a 1.1 million square-foot campus and a separate 216,000 square-foot campus. Apple
`employs more that 6,000 employees at these Austin facilities.”). Further, it is undisputed that
`Apple advertises and sells accused products in WDTex, and advertises jobs relating to the accused
`products in WDTex.
`Thus, contrary to Apple’s assertions, this Court has at least as much of an interest in this
`case than NDCal. This factor is neutral at best.
`3.
`Apple admits that the other public interest factors are neutral and do
`not favor transfer
`Apple admits that the factors to the familiarity of the forum with the governing law and the
`avoidance of conflicts of laws are neutral and do not favor transfer. Mot. at 15.
`IV. CONCLUSION
`As discussed above, all of the relevant transfer factor are either neutral or weigh against
`transfer. Apple has thus failed to meet its burden to show that NDCal is clearly more convenient
`than this District, and its motion to transfer should be denied.
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`Dated: May 3, 2022
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`
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`
`Respectfully submitted,
`
`
`
`
`
`
`/s/ Reza Mirzaie
`Reza Mirzaie (CA SBN 246953)
`rmirzaie@raklaw.com
`Paul A. Kroeger (CA SBN 229074)
`pkroeger@raklaw.com
`Philip X. Wang (CA SBN 262239)
`pwang@raklaw.com
`James N. Pickens (CA SBN 307474)
`jpickens@raklaw.com
`Minna Chan
`mchan@raklaw.com
`Christian Conkle
`cconkle@raklaw.com
`RUSS AUGUST & KABAT
`12424 Wilshire Blvd. 12th Floor
`Los Angeles, CA 90025
`Phone: (310) 826-7474
`
`Attorneys for Plaintiff XR
`Communications, LLC, d/b/a Vivato
`Technologies, Inc.
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