Case: 20-135 Document: 37 Page: 1 Filed: 07/06/2020
`
`Miscellaneous Docket No. 20-135
`
`
`IN THE
`United States Court of Appeals for the Federal Circuit
`
`
`
`IN RE APPLE INC.,
`
`Petitioner.
`
`
`
`On Petition for Writ of Mandamus to the
`United States District Court for the
`Western District of Texas
`No. 6:19-cv-00532-ADA, Hon. Alan D Albright
`
`
`APPLE INC.’S NON-CONFIDENTIAL REPLY IN SUPPORT OF
`PETITION FOR WRIT OF MANDAMUS
`
`
`
`John M. Guaragna
`DLA PIPER
`401 Congress Avenue
`Suite 2500
`Austin, TX 78701
`
`Abigail Colella
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`51 West 52nd Street
`New York, NY 10019
`
`
`Melanie L. Bostwick
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`1152 15th Street NW
`Washington, DC 20005
`(202) 339-8400
`
`Melanie R. Hallums
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`2121 Main Street
`Wheeling, WV 26003
`
`Counsel for Petitioner
`
`
`
`
`
`Miscellaneous Docket No. 20-135
`
`
`IN THE
`United States Court of Appeals for the Federal Circuit
`
`
`
`IN RE APPLE INC.,
`
`Petitioner.
`
`
`
`On Petition for Writ of Mandamus to the
`United States District Court for the
`Western District of Texas
`No. 6:19-cv-00532-ADA, Hon. Alan D Albright
`
`
`APPLE INC.’S NON-CONFIDENTIAL REPLY IN SUPPORT OF
`PETITION FOR WRIT OF MANDAMUS
`
`
`
`John M. Guaragna
`DLA PIPER
`401 Congress Avenue
`Suite 2500
`Austin, TX 78701
`
`Abigail Colella
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`51 West 52nd Street
`New York, NY 10019
`
`
`Melanie L. Bostwick
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`1152 15th Street NW
`Washington, DC 20005
`(202) 339-8400
`
`Melanie R. Hallums
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`2121 Main Street
`Wheeling, WV 26003
`
`Counsel for Petitioner
`
`
`
`
`
`Case: 20-135 Document: 37 Page: 2 Filed: 07/06/2020
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES ....................................................................... ii
`INTRODUCTION ....................................................................................... 1
`ARGUMENT ............................................................................................... 1
`I.
`The District Court’s Opinion Confirms That § 1404(a)
`Transfer Is Effectively Unavailable For Patent Cases
`Filed In Waco. ........................................................................... 1
`II. The District Court’s Analysis Of The § 1404(a) Factors
`Was Patently Erroneous. ......................................................... 5
`A.
`The private-interest factors clearly favor transfer. ....... 5
`1.
`Sources of Proof ..................................................... 5
`2.
`Compulsory Process ............................................... 8
`3.
`Convenience of Witnesses ................................... 10
`4.
`Practical Problems ............................................... 13
`The public-interest factors clearly favor transfer. ...... 15
`1.
`Court Congestion ................................................. 15
`2.
`Local Interest ....................................................... 18
`CONCLUSION ......................................................................................... 21
`CERTIFICATE OF SERVICE
`CERTIFICATE OF COMPLIANCE
`
`
`B.
`
`CONFIDENTIAL MATERIAL OMITTED
`
`The material redacted from page 10 of this brief includes
`
`confidential business information designated by Uniloc under the
`
`Protective Order entered by the district court on June 5, 2020.
`
`i
`
`
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`Case: 20-135 Document: 37 Page: 3 Filed: 07/06/2020
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`
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`In re Acer Am. Corp.,
`626 F.3d 1252 (Fed. Cir. 2010) ............................................................ 18
`In re Altera Corp.,
`494 F. App’x 52 (Fed. Cir. 2012) .......................................................... 11
`In re Apple Inc.,
`581 F. App’x 886 (Fed. Cir. 2014) .......................................................... 9
`In re Apple Inc.,
`No. 2020-127, 2020 WL 3249953 (Fed. Cir. June 16, 2020) ............... 11
`In re Corel Software LLC,
`778 F. App’x 951 (Fed. Cir. 2019) ........................................................ 15
`DynaEnergetics Europe GmbH v. Hunting Titan, Inc.,
`No. 6:20-cv-00069-ADA, 2020 WL 3259807 (W.D. Tex.
`June 16, 2020) ........................................................................................ 2
`In re EMC Corp.,
`501 F. App’x 973 (Fed. Cir. 2013) ........................................................ 14
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009) ............................................................ 17
`Genentech, Inc. v. Chiron Corp.,
`112 F.3d 495 (Fed. Cir. 1997) .............................................................. 12
`In re Google Inc.,
`No. 2017-107, 2017 WL 977038 (Fed. Cir. Feb. 23, 2017) .................... 8
`Hoffman v. Blaski,
`363 U.S. 335 (1960) .............................................................................. 14
`In re Hoffmann-La Roche Inc.,
`587 F.3d 1333 (Fed. Cir. 2009) .................................................. 6, 18, 20
`
`ii
`
`
`
`Case: 20-135 Document: 37 Page: 4 Filed: 07/06/2020
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`
`
`In re Horseshoe Entm’t,
`337 F.3d 429 (5th Cir. 2003) ................................................................ 13
`In re HP Inc.,
`No. 2018-149, 2018 WL 4692486 (Fed. Cir. Sept. 25, 2018) .............. 11
`In re Morgan Stanley,
`417 F. App’x 947 (Fed. Cir. 2011) ........................................................ 18
`In re Nintendo Co.,
`544 F. App’x 934 (Fed. Cir. 2013) ........................................................ 13
`In re Oath Holdings Inc.,
`908 F.3d 1301 (Fed. Cir. 2018) .............................................................. 3
`VirtualAgility Inc. v. Salesforce.com, Inc.,
`759 F.3d 1307 (Fed. Cir. 2014) ............................................................ 17
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) .............................................. 17, 18, 19, 20
`Statutes
`28 U.S.C. § 1400(b) ..................................................................................... 3
`28 U.S.C. § 1404(a) ................................................................................. 1, 3
`28 U.S.C. § 1406(a) ..................................................................................... 3
`Rules
`Fed. R. Civ. P. 45(c)(1)(B)(ii) .................................................................... 10
`Other Authorities
`5 Annotated Patent Digest § 36:171 ........................................................ 19
`Greg Lantier et al., A Guide to West Texas Patent Cases
`Before Albright, Law360 (July 1, 2020),
`https://bit.ly/2NTQvly .......................................................................... 17
`
`iii
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`
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`Case: 20-135 Document: 37 Page: 5 Filed: 07/06/2020
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`
`
`INTRODUCTION
`Apple’s petition demonstrated that there was no way to genuinely
`
`analyze the § 1404(a) factors and deny transfer—other than a clear
`
`abuse of discretion. Far from undermining Apple’s showing, the district
`
`court’s opinion (issued only after Apple sought mandamus) confirms it.
`
`The district court isn’t keeping this case because there are relevant
`
`witnesses and evidence in the Western District of Texas. It’s keeping it
`
`because Apple does substantial business in Austin—though not the
`
`business implicated here. And it’s keeping the case because of its own
`
`decisions to delay addressing transfer and to set an improbably early
`
`trial date. The district court’s treatment of § 1404(a) cannot withstand
`
`even the deferential scrutiny of mandamus review.
`
`ARGUMENT
`
`I.
`
`The District Court’s Opinion Confirms That § 1404(a)
`Transfer Is Effectively Unavailable For Patent Cases Filed
`In Waco.
`Apple’s petition illustrated the district court’s unwavering pattern
`
`of denying interdistrict transfer in patent cases—including, in Apple’s
`
`own cases, an escalation of denials in cases with fewer and fewer even
`
`alleged connections to Texas (and absolutely none to Waco). Pet. 12-15.
`
`In the three weeks since Apple filed that petition, the district court has
`
`1
`
`
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`
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`denied at least four more transfer requests.1 See Nos. 6:19-cv-00537-
`
`ADA, 6:20-cv-00011-ADA, 6:20-cv-00125-ADA, 1:20-cv-00342-ADA.
`
`The district court’s opinion underscores the effective impossibility
`
`of transferring a patent case out of Judge Albright’s courtroom. The
`
`numerous specific errors in the court’s analysis are detailed below. But
`
`the opinion is notable in other respects. The court insisted that the
`
`prior Apple-Uniloc transfers are not binding precedent—Apple didn’t
`
`argue they were—and incorrectly faulted Apple for not focusing on the
`
`facts of this case. SAppx8-9. The court then gave an extended analysis
`
`of supposed differences from prior cases—but that analysis had little to
`
`do with this case and instead repeatedly invoked Apple’s general
`
`business activities in Austin. SAppx9-14. The court even relied on
`
`several “facts” outside the record, which no party had raised. See, e.g.,
`
`SAppx7 (citing Internet-sourced list of Apple’s suppliers, none of which
`
`is relevant here); SAppx10 (listing Austin-based suppliers that even
`
`Uniloc does not argue are relevant); SAppx10 (citing irrelevant Austin-
`
`
`1 The district court also granted its first interdistrict transfer, sending a
`case between two Texas-based entities to the Southern District of
`Texas—but only based on the first-to-file rule. DynaEnergetics Europe
`GmbH v. Hunting Titan, Inc., No. 6:20-cv-00069-ADA, 2020 WL
`3259807 (W.D. Tex. June 16, 2020).
`
`2
`
`
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`Case: 20-135 Document: 37 Page: 7 Filed: 07/06/2020
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`
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`based “standards certification organizations” relied on by a party in a
`
`different case).
`
`The district court’s position is clear: Apple cannot obtain § 1404(a)
`
`transfer out of the Western District of Texas because Apple does
`
`substantial business in Austin. But while Apple’s general presence
`
`means it can be sued in Austin (or Waco)—Apple did not contest that
`
`venue is proper—that alone cannot preclude transfer. The district
`
`court’s analysis leaves no room for § 1404(a). By weighting several
`
`convenience factors based on Apple’s non-case-specific business
`
`practices, the court has collapsed the question of proper venue with the
`
`question of convenience. In defending the district court’s analysis,
`
`Uniloc suggests that § 1404(a) may no longer apply in patent cases, now
`
`that the scope of proper patent venues has narrowed. See Opp. 7. That
`
`is plainly not the law: “[t]he statutory rights under §§ 1400(b) and
`
`1406(a) are independent of the convenience-based rights under
`
`§ 1404(a).” In re Oath Holdings Inc., 908 F.3d 1301, 1306 (Fed. Cir.
`
`2018). But in the Waco Division, Uniloc’s is the de facto rule.
`
`This approach is encouraging forum- and judge-shopping and
`
`warrants this Court’s intervention. Pet. 14-16. Uniloc protests that it
`
`3
`
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`Case: 20-135 Document: 37 Page: 8 Filed: 07/06/2020
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`
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`wasn’t judge-shopping. Opp. 8-10. But as Uniloc admits (Opp. 9 & n.5),
`
`it initially (and incorrectly) tried to explain the dismissal of the earlier
`
`version of this lawsuit by blaming Apple’s inter partes review petition—
`
`until Apple pointed out that the petition was filed post-dismissal.
`
`Appx269-270; Appx288. Now, Uniloc claims that dismissal was
`
`necessary to “verify transfer of the ’088 patent to Uniloc from the prior
`
`owner.” Opp. 9. That is implausible. The ’088 patent was transferred
`
`by the same agreement as every other patent Uniloc has asserted
`
`against Apple.2 If verification was needed for the ’088 patent, it would
`
`have been needed for the patents in lawsuits that Uniloc didn’t dismiss.
`
`Uniloc’s charge of waiver (Opp. 10) misses the point. The district
`
`court’s implicit approval of judge-shopping is not a reason to grant
`
`transfer. But it is a reason for this Court to exercise its mandamus
`
`authority and prevent this behavior from continuing.
`
`
`2 See http://legacy-assignments.uspto.gov/assignments/assignment-pat-
`45338-601.pdf (USPTO Reel/Frame 045338/0601); http://legacy-
`assignments.uspto.gov/assignments/assignment-pat-46532-88.pdf
`(USPTO Reel/Frame 046532/0088).
`
`4
`
`
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`
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`II. The District Court’s Analysis Of The § 1404(a) Factors Was
`Patently Erroneous.
`Contrary to the district court’s assertion (SAppx7), Apple does not
`
`believe it can be sued only in the Northern District of California. But it
`
`is not surprising that the forum encompassing Apple’s headquarters
`
`and its principal design and development functions tends to be the most
`
`convenient for parties, witnesses, and evidence—particularly since
`
`patent cases are heavily geared toward the operation and marketing of
`
`accused products and the conduct of the accused infringer. In this case,
`
`as in prior ones, that district is clearly more convenient, and the district
`
`court’s refusal to transfer was a clear abuse of discretion.
`
`A. The private-interest factors clearly favor transfer.
`Apple demonstrated (Pet. 18-33) that any reasonable analysis of
`
`the private-interest factors would markedly favor transfer. Yet the
`
`district court found otherwise, weighing only one factor “slightly” in
`
`favor of transfer, finding two neutral, and weighing one “heavily”
`
`against. It reached that conclusion through several clear errors.
`
`Sources of Proof
`1.
`The district court correctly found that this factor favored transfer,
`
`but erred in finding that it did so only “slightly.” SAppx15. Although
`
`5
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`the district court recognized that “the greater balance of witnesses …
`
`are located within NDCA,” SAppx21-22, it patently erred in treating the
`
`location of documents as neutral.
`
`The district court acknowledged that Apple, as the accused
`
`infringer, “will have the bulk of the documents that are relevant in this
`
`case.” SAppx18. Apple showed that all its relevant documents are in
`
`the Northern District of California. Pet. 29-30. The district court got
`
`around that fact through a series of errors. It credited the physical
`
`location of Uniloc’s documents—moved to Tyler, Texas, in response to
`
`Uniloc’s prior transfer defeats—even though they “are not located in
`
`WDTX.” SAppx19; cf. In re Hoffmann-La Roche Inc., 587 F.3d 1333,
`
`1337 (Fed. Cir. 2009) (discounting location of documents moved for
`
`venue purposes).
`
`The district court also insisted, contrary to sworn testimony, that
`
`Apple’s operations in Austin must be sources of proof.3 SAppx20; see
`
`
`3 Curiously, the court “struggle[d] to see” how Apple considers Uniloc’s
`“management office” in California relevant, but not Apple’s Austin
`campus. SAppx15 n.12. The difference is clear: Uniloc’s relevant
`witnesses have worked, lived, and attended more than one hundred
`meetings in California, whereas Apple’s relevant witnesses have never
`even traveled to Apple’s Austin facilities. Pet. 30; Appx257.
`
`6
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`Case: 20-135 Document: 37 Page: 11 Filed: 07/06/2020
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`Pet. 29-30; Appx93; Appx204-205. The district court relied in part on
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`information about revenue and royalties relating to third-party app
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`developers. SAppx20; SAppx117. The court did not explain how such
`
`information could be relevant to damages, and Uniloc’s attempt to
`
`substantiate it, by a convoluted damages theory presented for the first
`
`time to this Court (Opp. 23-24), makes no sense. The district court also
`
`relied on AppleCare documents with instructions for updating apps.
`
`SAppx20. But there is no evidence that such documents are in Austin;
`
`Uniloc acknowledged that their location was unidentified. Appx185.
`
`The district court also accepted Uniloc’s argument that Austin-
`
`based Apple employees who work with content-delivery networks likely
`
`have relevant documents. SAppx20 (citing Appx185). But Uniloc did
`
`not actually show that such documents were in Austin or explain how
`
`they are potentially relevant. Pet. 20-21. Although Uniloc improperly
`
`tries to rehabilitate its deficient showing by citing new evidence to this
`
`Court, Opp. 15-16, it still has not identified any information it would try
`
`to obtain about CDN technology.
`
`Finally, the district court opined that a non-party manufacturer,
`
`Flextronics, may have documents in Austin related to damages—
`
`7
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`
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`namely, information on sales of the Mac Pro (one of various accused
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`products). SAppx20. As the district court recognized, even if
`
`Flextronics had such documents, they would be “duplicative” of Apple’s
`
`sales documentation, which covers all accused products (and which
`
`Apple produced from custodians in California). SAppx20. It is
`
`implausible to suggest that Uniloc would request third-party discovery
`
`for information it readily obtained from Apple.
`
`Taken together, the type and quantity of documents in Texas do
`
`not come close to those in California. This Court has granted
`
`mandamus when a district court “overemphasiz[ed]” the sources of proof
`
`in the transferor forum and gave this factor only “slight” weight despite
`
`the “vast majority” of relevant proof being in the transferee forum. In
`
`re Google Inc., No. 2017-107, 2017 WL 977038, at *3 (Fed. Cir. Feb. 23,
`
`2017). The same thing happened here, and the same outcome should
`
`result.
`
`2. Compulsory Process
`The district court found the compulsory-process factor neutral
`
`only by disregarding case law and relying on irrelevant witnesses in
`
`Texas. The district court recognized that there are more (and more
`
`8
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`
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`clearly relevant) third-party witnesses in California than in Texas—
`
`namely, the Fortress employees who serve on Uniloc’s board. SAppx24.
`
`So the district court found reasons to discount that fact.
`
`It first “disagree[d] with Apple’s contention that the greater
`
`number of third-party witnesses governs this factor.” SAppx23. But
`
`the compulsory-process factor “will weigh heavily in favor of transfer
`
`when more third-party witnesses reside within the transferee venue
`
`than reside in the transferor venue.” In re Apple, Inc., 581 F. App’x 886,
`
`889 (Fed. Cir. 2014). The district court also “hesita[ted]” to give weight
`
`to the Fortress employees: although it recognized there was no
`
`confirmation they will appear without subpoenas, the court speculated
`
`“it seems a lot less likely that” employees of Uniloc’s parent company
`
`“would be unwilling to testify at a trial concerning Uniloc.” SAppx24.
`
`Meanwhile, the district court did not hesitate to give weight to
`
`third-party employees who will not possibly be called to trial. It again
`
`cited Flextronics, despite being “unsure” what information Flextronics
`
`witnesses might provide. SAppx24. It is implausible that Flextronics
`
`would need to produce documents that Apple already has (supra 8); it is
`
`9
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`
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`beyond implausible to suggest Uniloc might subpoena a trial witness to
`
`testify to this duplicative data.
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`It is equally unreasonable to suggest that Huawei, as a
`
`,
`
`might have trial testimony. What information would Huawei have that
`
`Uniloc would not? Neither the district court nor Uniloc has answered
`
`that question. Nor have they shown that a hypothetically relevant
`
`employee would come from Huawei’s Texas headquarters, rather than
`
`its large Northern California offices. SAppx104-105. They certainly
`
`haven’t shown how a Huawei employee in Plano meets the test for a
`
`statewide non-party subpoena under Fed. R. Civ. P. 45(c)(1)(B)(ii)
`
`(requiring no “substantial expense”).
`
`3. Convenience of Witnesses
`The district court acknowledged that “both Apple and Uniloc will
`
`each have one or more potential trial witnesses from NDCA,” which
`
`would ordinarily “favor transferring the case to NDCA.” SAppx27. The
`
`district court again found reasons to avoid that result. Each was clearly
`
`erroneous.
`
`The court gave “little weight to the convenience of party witnesses
`
`in relation to non-party witnesses,” SAppx26 n.13, even though this
`
`10
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`CONFIDENTIAL MATERIAL OMITTED
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`Court recently reminded the same district court that this approach is
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`contrary to law. In re Apple Inc., No. 2020-127, 2020 WL 3249953, at *2
`
`(Fed. Cir. June 16, 2020) (denying mandamus but expressing concern
`
`about this “discordant proposition”); see SAppx26 n.13 (“stand[ing] by”
`
`this approach).4
`
`The district court also legally erred in considering three witnesses
`
`(a prosecuting attorney and two inventors) in New York—outside of
`
`either forum—despite this Court’s explanation that such witnesses do
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`not affect the convenience analysis. See In re HP Inc., No. 2018-149,
`
`2018 WL 4692486, at *3 (Fed. Cir. Sept. 25, 2018); Pet. 28-29. The
`
`district court’s reliance on an Austin-based prior-art witness was not
`
`only improper but internally inconsistent. The court elsewhere
`
`recognized that Mr. Foote is an inventor on prior art that Apple is not
`
`relying on for invalidity, meaning he will not be a witness. SAppx24;
`
`see Appx204. Yet the district court inexplicably gave his location some
`
`weight. SAppx26-27.
`
`
`4 In re Altera Corp. (cited at SAppx26) does not suggest otherwise. That
`case applied Third Circuit law (not the Fifth Circuit’s 100-mile rule),
`and there the third-party witnesses had information about “engineering
`and sales of the accused products”—information that Apple’s witnesses
`have here. 494 F. App’x 52, 53-54 (Fed. Cir. 2012).
`
`11
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`
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`The district court’s inconsistency extended to other witnesses. As
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`noted above (at 9), the court acknowledged for compulsory-process
`
`purposes that Uniloc’s California-based board members were not clearly
`
`willing to travel, yet it stated the opposite in analyzing witness
`
`convenience. SAppx26. The district court also stated without citation
`
`that “Uniloc has witnesses in or near both districts,” SAppx26, even
`
`though Uniloc identified no Texas-based witnesses. See Appx191; Opp.
`
`13-14. Uniloc belatedly tries to identify a Texas-based witness by
`
`scouring Apple’s source code, Opp. 19 n.7, but this new “evidence” (even
`
`if that former employee had worked on relevant source code, though the
`
`code shows facially that he did not) cannot support the district court’s
`
`opinion, which necessarily did not rely on it. See Genentech, Inc. v.
`
`Chiron Corp., 112 F.3d 495, 497 n.1 (Fed. Cir. 1997) (rejecting affidavit
`
`introduced first on appeal).5
`
`
`5 In contrast, the statistics cited by Apple are matters of public record
`subject to judicial notice. Genentech, 112 F.3d at 497 n.1; see infra 17.
`
`12
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`4. Practical Problems
`The last private-interest factor should also have favored transfer.
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`Pet. 32-33. Yet the district court weighed it “heavily against transfer,”
`
`SAppx30, based on two clear errors.
`
`First, the district court created a “practical problem” that should
`
`never have existed. It weighed this factor against transfer solely
`
`because of the “significant steps” taken by the time the court issued its
`
`transfer opinion. SAppx29. But those steps were taken only after the
`
`district court (1) waited six months to hold a hearing on Apple’s transfer
`
`motion; (2) denied Apple’s motion to stay the case pending resolution of
`
`the transfer issue; (3) advanced substantive areas of the case rather
`
`than expeditiously resolving the transfer motion; and (4) waited six
`
`weeks after announcing its transfer decision to provide its reasoning.
`
`See Pet. 6, 9-10.
`
`The district court’s decision to allow the case to advance before
`
`resolving transfer was improper. See In re Nintendo Co., 544 F. App’x
`
`934, 941 (Fed. Cir. 2013) (“[A] trial court must first address whether it
`
`is a proper and convenient venue before addressing any substantive
`
`portion of the case.”); In re Horseshoe Entm’t, 337 F.3d 429, 433 (5th
`
`13
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`
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`Cir. 2003) (“[D]isposition of [the transfer] motion should have taken a
`
`top priority in the handling of this case.”). For the district court to then
`
`cite its own actions as a strong reason to deny transfer compounds the
`
`error. “Motions to transfer venue are to be decided based on ‘the
`
`situation which existed when suit was instituted.’” In re EMC Corp.,
`
`501 F. App’x 973, 976 (Fed. Cir. 2013) (quoting Hoffman v. Blaski, 363
`
`U.S. 335, 343 (1960)). It is particularly egregious for the court to cite its
`
`Markman order as a reason to deny transfer. SAppx29. The district
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`court issued that order on June 8, nearly a month after announcing it
`
`would deny transfer. Appx10-11. The district court’s choice to issue the
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`claim-construction order before issuing a transfer opinion should not be
`
`counted against Apple.
`
`The district court also clearly erred in minimizing the efficiencies
`
`of transferring this case to the forum where 21 other cases between the
`
`parties are pending. Pet. 32-33. Although the court acknowledged that
`
`“similar cases litigated in the same district could positively impact
`
`judicial economy,” SAppx29, it faulted the Northern District of
`
`California for staying several cases. This is an unusual critique—those
`
`cases are stayed pending inter partes review, which will unquestionably
`
`14
`
`
`
`Case: 20-135 Document: 37 Page: 19 Filed: 07/06/2020
`
`
`
`simplify the issues (thus aiding judicial efficiency). See In re Corel
`
`Software LLC, 778 F. App’x 951, 954 (Fed. Cir. 2019). More than 100
`
`claims have been found unpatentable, with the rest subject to estoppel.
`
`The district court also remarked that “the actively litigated cases
`
`in NDCA do not have a trial date set whereas this court has a trial date
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`set.” SAppx29. Merely setting a trial date does not mean a case will get
`
`to trial faster. Although the district court cited its own purported speed
`
`in getting cases to trial, this has yet to be proven. See infra 16. Nor is
`
`it fair to say that a case is no longer “in [its] early stages” simply
`
`because a trial date is set. SAppx29 & n.14.
`
`B. The public-interest factors clearly favor transfer.
`Apple established that both disputed public-interest factors favor
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`transfer. Pet. 34-40. The district court clearly erred by holding
`
`otherwise.
`
`1. Court Congestion
`As Apple demonstrated, (1) statistics show that patent cases get
`
`to trial faster in the Northern District of California than in the Western
`
`District of Texas; (2) the district court has not yet followed its default
`
`scheduling order through to trial; and (3) the district court’s conception
`
`15
`
`
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`Case: 20-135 Document: 37 Page: 20 Filed: 07/06/2020
`
`
`
`of its patent docket as less crowded than other venues is incorrect. Pet.
`
`37-39. Yet the district court insisted that its scheduling order setting
`
`trial 18.4 months after filing was sufficient to weigh this factor against
`
`transfer. SAppx30-31.
`
`That conclusion is transparently flawed. The district court puts
`
`all its patent cases on an aggressive schedule, but, thus far, no case has
`
`followed that schedule through to trial. The trial date in the furthest-
`
`along case has been pushed back twice and is tentatively scheduled for
`
`approximately 22 months after filing, without a guarantee that date
`
`will hold. MV3 Partners LLC v. Roku, Inc. WDTX-6-18-cv-00308-ADA,
`
`Dkt. 293. And real-world considerations—including the explosion of
`
`patent cases filed in Waco—will unquestionably limit the district court’s
`
`ability to maintain hundreds of patent cases on an 18-month schedule.
`
`Pet. at 38-39. Indeed, the district court has four trials scheduled in a
`
`one-month period against Apple alone, with two set for the exact same
`
`day.6
`
`
`6 The four are this case (trial set for March 22, 2021), Fintiv, No. 19-cv-
`01238 (March 8); STC.UNM, No. 20-cv-00351 (March 22); and Solas,
`No. 19-cv-00537 (April 5).
`
`16
`
`
`
`Case: 20-135 Document: 37 Page: 21 Filed: 07/06/2020
`
`
`
`The district court was also wrong to reduce the court-congestion
`
`factor to a race-to-the-finish. Time-to-trial is merely “a factor” in the
`
`court-congestion analysis, not the sole concern. In re Genentech, Inc.,
`
`566 F.3d 1338, 1347 (Fed. Cir. 2009). And here, other court-congestion
`
`concerns are significant.
`
`It is indisputable that the Western District of Texas now has the
`
`busiest patent docket in the country. Greg Lantier et al., A Guide to
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`West Texas Patent Cases Before Albright, Law360 (July 1, 2020),
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`https://bit.ly/2NTQvly. Plaintiffs have filed over 325 new patent-
`
`infringement complaints before Judge Albright this year (65 just in the
`
`weeks since Apple filed its petition). Id. As the district court observed
`
`about the District of Delaware, which it incorrectly thought was more
`
`congested than its own district, Appx245, that extreme caseload is
`
`likely to cause the precise “administrative difficulties” that this factor
`
`addresses. In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir.
`
`2008) (en banc) (“Volkswagen II”).7
`
`
`7 The updated statistics cited in Apple’s petition are matters of public
`record subject to judicial notice. VirtualAgility Inc. v. Salesforce.com,
`Inc., 759 F.3d 1307, 1312-13 (Fed. Cir. 2014). Uniloc does not dispute
`their accuracy.
`
`17
`
`
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`Case: 20-135 Document: 37 Page: 22 Filed: 07/06/2020
`
`
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`Finally, neither the district court nor Uniloc offered any reason
`
`why “a more rapid disposition of the case would be important enough to
`
`be assigned significant weight”—and this Court has explained that
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`speed is generally unimportant in cases brought by non-practicing
`
`entities. In re Morgan Stanley, 417 F. App’x 947, 950 (Fed. Cir. 2011).
`
`2. Local Interest
`This factor protects “the local interest in having localized interests
`
`decided at home.” Volkswagen II, 545 F.3d at 317. That interest is easy
`
`enough to observe in a dispute between individuals or about real
`
`property. It is less clear in a patent case. But when there are
`
`“significant connections between a particular venue and the events that
`
`gave rise to a suit,” the local-interest factor favors that venue. In re
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`Acer Am. Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010) (emphasis added).
`
`Those connections may include the residence of “the inventor and
`
`patent prosecuting attorneys whose work may be questioned at trial.”
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`Id. On the defense side, a district has a localized interest when “the
`
`cause of action calls into question the work and reputation of several
`
`individuals residing” there—namely, individuals who “developed and
`
`tested” the accused technology. Hoffmann-La Roche, 587 F.3d at 1336;
`
`18
`
`
`
`Case: 20-135 Document: 37 Page: 23 Filed: 07/06/2020
`
`
`
`see also 5 Annotated Patent Digest § 36:171 (recognizing localized
`
`interest in “the forum that has the ‘center of gravity’ of the infringing
`
`activity,” such as design, marketing, and sales). Here, those
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`connections are to the Northern District of California, where Apple’s
`
`headquarters are and where the allegedly infringing operating systems
`
`were designed and tested. Pet. 34-35. In contrast, no events
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`significantly related to the ’088 patent or the accused operating systems
`
`occurred in Texas.
`
`This factor should have weighed in favor of transfer. The district
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`court treated it as neutral by missing the point. Instead of requiring a
`
`“relevant factual connection” between the forum and the litigation at
`
`hand, Volkswagen II, 545 F.3d at 318, the district court looked at each
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`party’s general presence in the two forums.
`
`Thus the district court cited Apple’s “substantial presence[]” in
`
`both districts, and—to distinguish prior Uniloc cases that were
`
`transferred—the fact that Apple’s Austin presence increased in recent
`
`years. SAppx32; see SAppx11-13. The district court also relied heavily
`
`on the “state and local tax benefits received by and pledged to Apple to
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`build a second campus in Austin.” SAppx32; see also Opp. 30.
`
`19
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`
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`Case: 20-135 Document: 37 Page: 24 Filed: 07/06/2020
`
`
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`But the local-interest factor does not depend on a company’s non-
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`case-related presence. Indeed, given that Apple has employees in all 50
`
`states, basing local interest on mere employee presence would be akin
`
`to basing it on “the sale of an accused product offered nationwide”—a
`
`rationale this Court and the Fifth Circuit have soundly rejected.
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`Hoffmann-La Roche, 587 F.3d at 1338; Volkswagen II, 545 F.3d at 318;
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`see www.apple.com/job-creation (showing 29 cities with over 250
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`employees). There is likewise no authority for the notion that tax
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`incentives create a local interest in any litigation against companies
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`benefiting from those incentives. SAppx32. And nothing supports the
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`notion that the presence of Flextronics—a non-party th
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