Opinion
CIVIL 6:22-cv-00077-ADA
12-15-2022
SPEIR TECHNOLOGIES LTD., Plaintiff, v. APPLE INC., Defendant.
SEALED MEMORANDUM OPINION AND ORDER
ALAN D ALBRIGHT UNITED STATES DISTRICT JUDGED
This opinion memorializes the Court's decision on Defendant Apple Inc.'s (“Apple” or “Defendant”) Motion to Transfer Venue from the Western District of Texas (“WDTX”) to the Northern District of California (“NDCA”) under 28 U.S.C. § 1404(a). ECF No. 37. After careful consideration of the relevant facts, applicable law, and the parties' briefs (ECF Nos. 55, 57), the Court GRANTS Defendant's Motion to Transfer. As explained below, the Court also GRANTS Speir's motion to strike (ECF No. 60) Apple's identification of six potential prior art witnesses from Apple's transfer reply brief as untimely.
I. BACKGROUND
Plaintiff Speir Technologies Ltd. (“Speir” or “Plaintiff”) filed this lawsuit accusing Defendant of patent infringement. ECF No. 8 (“Am. Compl.”). Speir alleges that certain Apple products infringe U.S. Patent Nos. 8,345,780 (“'780 Patent); 7,110,779 (“'779 Patent”); 7,321,777 (“' 777 Patent); and 7,765,399 (“'399 Patent”) (collectively, the “Asserted Patents”). Am. Compl. ¶ 1. Speir's infringement allegations cover a broad spectrum of Apple products and features. Speir accuses 5G cellular technology in certain Apple products of infringing the '780 Patent (“Accused '780 Functionalities”). Id. ¶¶ 14-21. Speir also accuses the “Precision Finding” feature in certain Apple products of infringing the '777 Patent and the '779 Patent (“Accused '777/'779 Functionalities”). Id. ¶¶ 28-33, 39-45. Finally, Speir separately alleges that Apple's FaceID/TouchID authentication technology and Apple's “Secure Enclave” infringe the '399 Patent (“Accused '399 Functionalities”). Id. ¶¶ 51-61. In its original complaint, Speir did not allege infringement of the '399 Patent, nor did Speir accuse many of the products now alleged as infringing.
Speir is an Irish limited liability company with its principal place of business in Ireland. Id. ¶ 2.
Apple is a California corporation with a principal place of business in Cupertino, California and regular and established places of business at 12545 Riata Vista Circle, Austin, Texas 12801 Delcour Dr., Austin, Texas; 12801 Delcour Dr., Austin, Texas; and 3121 Palm Way, Austin, Texas 78758. Id. ¶¶ 3, 6.
II. LEGAL STANDRD
In patent cases, motions to transfer under 28 U.S.C. § 1404(a) are governed by the law of the regional circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). 28 U.S.C. § 1404(a) provides that, “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” “Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.'” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
The preliminary question under Section 1404(a) is whether a civil action might have been brought in the transfer destination venue. In re Volkswagen, Inc., 545 F.3d 304, 312 (5th Cir. 2008) (en banc) (“Volkswagen II”). If the destination venue would have been a proper venue, then “[t]he determination of ‘convenience' turns on a number of public and private interest factors, none of which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004). The private factors include: “(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)). The public factors include: “(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws of the application of foreign law.” Volkswagen I, 371 F.3d at 203 .
The burden to prove that a case should be transferred for convenience falls on the moving party. Volkswagen II, 545 F.3d at 314. The burden that a movant must carry is not that the alternative venue is more convenient, but that it is clearly more convenient. Id. at 315. Although the plaintiff's choice of forum is not a separate factor entitled to special weight, respect for the plaintiff's choice of forum is encompassed in the movant's elevated burden to “clearly demonstrate” that the proposed transferee forum is “clearly more convenient” than the forum in which the case was filed. Id. at 314-15. While “clearly more convenient” is not necessarily equivalent to “clear and convincing,” the moving party “must show materially more than a mere preponderance of convenience, lest the standard have no real or practical meaning.” Quest NetTech Corp. v. Apple, Inc., No. 2:19-cv-118, 2019 WL 6344267, at *7 (E.D. Tex. Nov. 27, 2019).
III. ANALYSIS
A. Plaintiff could have brought this case in the Northern District of California
The threshold determination in the § 1404(a) analysis is whether this case could initially have been brought in the destination venue. Defendant asserts that this case could have originally been brought in the NDCA because Defendant has its headquarters there. Plaintiff does not contest this point. This Court finds that venue would have been proper in the NDCA. Thus, the Court proceeds with its analysis of the private and public interest factors to determine if the NDCA is clearly more convenient than the WDTX.
1. The private interest factors favor transfer.
a. The cost of attendance and convenience for willing witnesses favors transfer.
“The convenience of witnesses is the single most important factor in the transfer analysis.” Fintiv, 2019 U.S. Dist. LEXIS 171102, at *17. The Fifth Circuit has established the “100-mile rule,” providing that “[w]hen the distance between an existing venue for trial of a matter and a proposed venue under § 1404(a) is more than 100 miles, the factor of inconvenience to witnesses increases in direct relationship to the additional distance to be traveled.” Volkswagen I, 371 F.3d at 204-05.
This factor appropriately considers the cost of attendance of all willing witnesses including both party and non-party witnesses. In re Pandora, No. 2021-172, 2021 WL 4772805, at *2-3 (Fed. Cir. Oct. 13, 2021). “When the distance between an existing venue for trial of a matter and a proposed venue under §1404(a) is more than 100 miles, the factor or inconvenience to witnesses increases in direct relationship to the additional distance to be travelled.” Volkswagen II, 545 F.3d at 317 (quoting Volkswagen I, 371 F.3d at 203). The Federal Circuit has stated that courts should not apply this 100-mile rule “rigidly” in some cases where witnesses would be required to travel a significant distance no matter where they testify. In re Apple, 979 F.3d at 1342 (discussing witnesses traveling from New York) (citing Volkswagen II, 545 F.3d at 317).
“[T]he inquiry should focus on the cost and inconvenience imposed on the witnesses by requiring them to travel to a distant forum and to be away from their homes and work for an extended period of time.” In re Google, LLC, No. 2021-170, slip op. at 9 (Fed. Cir. Sept. 27, 2021). The Federal Circuit indicated that time away from an individual's home is a more important metric than distance. Id. Time and distance frequently and naturally overlap because witnesses usually take more time to travel farther away, thereby increasing the time away from home.
The Court holds that this factor strongly favors transfer because of the number of relevant witnesses in the NDCA.
i. Apple's witnesses identified by Apple
Apple argues that this factor favors transfer because overwhelming majority of Apple's likely witnesses are in the NDCA. ECF No. 37 at 3. In support of this argument, Apple provides a declaration from Mr. Mark Rollins, a Finance Manager at Apple. ECF No. 37-6 (“Rollins Decl.”) ¶ 1. Apple first identifies that Apple's employees and likely trial witnesses knowledgeable about Apple's business practices are all located in the NDCA. ECF No. 37 at 3 (citing Rollins Decl. ¶¶ 3-6). Specifically, identifies three relevant witnesses in the NDCA knowledgeable about Apple's business practices concerning the accused products: [Redacted] Id. (citing ECF Nos. 37-7 (“Silva Decl.”), 37-9 (“Williams Decl.”), and 37-4 (“Grewal Decl.”)).
Mr. Rollins is a repeat, professional venue declarant that this Court has repeatedly found to lack credibility. See, e.g., Scramoge Tech. Ltd. v. Apple Inc., No. 6:21-CV-00579-ADA, 2022 WL 1667561, at *2 (W.D. Tex. May 25, 2022). Because Speir does not challenge the credibility of Mr. Rollins here, see generally ECF No. 55, the Court will not discount his declaration in this case.
For each of the accused functionalities, Apple also identifies its relevant technical witnesses. ECF No. 37 at 4. According to Apple, with respect to the Accused '780 Functionalities, the relevant Apple employees are [Redacted] who are located in the NDCA. Id. [Redacted] Id. [Redacted] Id. And with respect to the Accused '777/'779 Functionalities, the Apple employees who designed, developed, and have personal knowledge of the accused Precision Finding technology are all allegedly located in the NDCA: including [Redacted] Id. [Redacted] Id.[Redacted] Id. Each of these above employees (excluding Mr. Rollins), states in their declaration that they work and reside in the NDCA and that none of them, nor their teams, work with anyone located in Texas in connection with the Accused '777/'779 Functionalities. Id.
As for the Accused '399 Functionalities, they implicate Apple's TouchID/FaceID team, the Secure Enclave team, and the team responsible for the Secure Enclave's Operating System (“sepOS”). Id. According to Apple, the “Apple engineers who designed, developed, and have personal knowledge of these Accused '399 Functionalities are all located in N.D. Cal.” Id. at 5. Apple identifies three relevant witnesses who are located in the NDCA. Apple first identifies[Redacted] as used by the Secure Enclave for Apple's products. Id. According to Apple and this [Redacted]team is located N.D. Cal. and [Redacted] and does not work with any individuals located in Texas. Apple next identifies [Redacted] Id. According to Apple and work and reside in N.D. Cal. [Redacted] Id. Apple finally identifies that work and reside in the NDCA. Id.
ii. Apple's witnesses identified by Speir
Speir identifies four Apple employees who are located in the WDTX. ECF No. 55 at 9. Specifically, Speir identifies [Redacted] as being Apple employees in Austin, Texas, and being relevant to the Accused '399 Patent Functionalities. Id. Indeed, Apple also identifies these employees as being located in the WDTX but argues that the Court should discount their relevance to this case. See ECF No. 37 at 5-6. According to Apple, each of the above engineers identified by Speir work on the Secure Enclave team. Id. Apple argues that each of the above engineers are [Redacted]who are located in N.D. Cal., and are likely to be far more important witnesses.” Id. (citing ECF No. 37-5 ¶¶ 6-10).
In response, Speir contends that these Apple employees located in the WDTX are relevant and important witnesses. ECF No. 55 at 9. Speir relies on a previous opinion of this Court that found that [Redacted]as being “highly relevant to whether Apple infringes.” Id. (citing Identity Sec. LLC v. Apple, Inc., No. 1:22- cv-00058, ECF No. 59, at 8 (W.D. Tex. Jan. 25, 2022)). In Identity Security, this Court found that the work of [Redacted]on the Apple's Secure Enclave technology to be “likely highly relevant to whether Apple infringes.” Id. Speir argues in Identity Security, this Court already weighed the comparative importance of Apple's WDTX employees compared to those in NDCA. Id. “Mr. Herbeck's deposition reveals that he is the ‘lead designer and the lead spec author' of Secure Enclave, meaning he would have superior knowledge of the accused technology compared to other members of the team.” Identity Security, No. 1:22-cv-00058, ECF No. 59, at 8 (rejecting “assertion that key decision-making is done in California and not in Austin”). Nevertheless, Speir concedes that this factor “weighs only slightly in favor of transfer” to the NDCA. ECF No. 55 at 9.
In reply, Apple argues that “Speir ignores that Identify Security [sic] involved only Secure Enclave, whereas Speir allegations here are directed towards a half-dozen other technologies.” ECF No. 57 at 5 (emphasis in original). Apple further argues that “Speir concedes that the most important factor favors transfer (Resp. 9), and does not dispute that all of Apple's non-technical witnesses, and the vast majority of engineers that designed and developed the accused technologies, are in NDCA.” Id.
The Court is convinced that Speir has demonstrated that there are four relevant Apple witnesses in Austin for the Accused '399 Patent Functionalities who would find travel within the WDTX more convenient than travel to the NDCA. As this Court found in Identity Security, [Redacted] work on the Apple's Secure Enclave technology will be “likely highly relevant to whether Apple infringes.” Identity Security, No. 1:22-cv-00058, ECF No. 59, at 8. But the relevant Apple witnesses in Austin that Speir identified are relevant only for the Accused '399 Patent Functionalities. Speir fails to identify any Apple witnesses in the WDTX that are relevant for the remaining accused functionalities, including the Accused '780 Functionalities and the Accused '777/'779 Functionalities. This fact alone strongly favors transfer to the NDCA.
In sum, because Speir fails to identify any willing witnesses that find the WDTX more convenient for the Accused '780 Functionalities and the Accused '777/'779 Functionalities, this factor favors transfer.
b. The availability of compulsory process to secure the attendance of witnesses is neutral.
Under the Federal Rules, a court may subpoena a witness to attend trial only (a) “within 100 miles of where the person resides, is employed, or regularly transacts business in person”; or (b) “within the state where the person resides, is employed, or regularly transacts business in person, if the person . . . is commanded to attend a trial and would not incur substantial expense.” Fed.R.Civ.P. 45(c)(1)(A), (B)(ii); Gemalto S.A. v. CPI Card Grp. Inc., No. 15-CA-0910, 2015 WL 10818740, at *4 (W.D. Tex. Dec. 16, 2015). Under this factor, the Court focuses on non-party witnesses whose attendance may need to be secured by a court order. Fintiv, 2019 U.S. Dist. LEXIS 171102, at *14 (citing Volkswagen II, 545 F.3d at 316). This factor “weigh[s] 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 Fed.Appx. 886, 889 (Fed. Cir. 2014). When “there are several witnesses located in the transferee forum and none in the transferor forum,” this factor favors transfer. In re Google, No. 2021-171, 2021 WL 4592280, at *5 (Fed. Cir. Oct. 6, 2021).
The Federal Circuit has held that, under Fifth Circuit law, “when there is no indication that a non-party witness is willing, the witness is presumed to be unwilling and considered under the compulsory process factor.” In re HP Inc., No. 2018-149, 2018 WL 4692486, at *3 n.1 (Fed. Cir. Sept. 25, 2018); see also In re Hulu, LLC, No. 2021-142, 2021 U.S. App. LEXIS 22723, at *10 (Fed. Cir. Aug. 2, 2021) (“[W]here . . . the movant has identified multiple third-party witnesses and shown that they are overwhelmingly located within the subpoena power of only the transferee venue, this factor favors transfer even without a showing of unwillingness for each witness.”). However, a recent Fifth Circuit opinion held that the availability of compulsory process “receives less weight when it has not been alleged or shown that any witness would be unwilling to testify.” In re Planned Parenthood Fed'n of Am., Inc., 52 F.4th 625, 630-31 (5th Cir. 2022). Further, this Court cannot “discount” third-party entities having pertinent information in the transferee venue “just because individual employees were not identified.” In re Apple, 2021 U.S. App. LEXIS 33788, at *8 (quoting In re HP Inc., 826 Fed.Appx. 899, 903 (Fed. Cir. 2020)).
Apple contends that the compulsory process factor strongly favors transfer because the NDCA will have absolute subpoena power over Qualcomm employees. ECF No. 37 at 10. Apple asserts that the relevant third-party witnesses are Qualcomm witnesses are located in California. Id. In support of this argument, Apple relies on the declarations of [Redacted] Id. at 11. Nowhere in Apple's Motion or in these two declarations does Apple show that these Qualcomm witnesses would be unwilling to testify. See In re Planned Parenthood Fed'n of Am., Inc., 52 F.4th at 630-31; Id.; ECF No. 37-8; ECF No. 37-11.
In response, Speir relies on six prior art witnesses and two Dallas-area suppliers of components for the Accused Products-- [Redacted]in support of its argument that the compulsory process factor weighs against transfer. ECF No. 5 at 9. Dallas is within the 100-mile radius of this Court's absolute subpoena power, weighing this factor against transfer. Fed.R.Civ.P. 45(c)(1)(A). In contrast, Speir argues that Apple's proposed Qualcomm witnesses are in San Diego, which is outside the absolute subpoena power of NDCA. Id. As for the prior art witnesses, Speir explains that Apple has disclosed invalidity contentions citing prior art references whose inventors or authors are listed in the Dallas area within the Court's absolute subpoena power. ECF No. 55 at 9-10. Specifically, Speir relies on six prior art witnesses, including Bezalel Gavish of U.S. Pat. App. 2004/0196834, Niranjan of U.S. Pat. No. 8,625,481, Aris Papasakellariou of U.S. Pat. App. 2007/0177501, Imrich Chlamtac of “Mobile ad hoc networking: imperatives and challenges”, Walter Rozanski of U.S. Pat. No. 5,974,057, and Louis Jandrell of U.S. Pat. No. 5,526,357. Id.
Apple replies that Speir's reliance on [Redacted] employees should be rejected because they supply generic components that have no relevance to the accused functionalities. ECF No. 57 at 3. Apple argues that Speir has not sought an discovery from[Redacted]. Id. According to Apple, the only third-party identified in Speir's infringement contentions is Qualcomm. Id. The Court agrees with Apple [Redacted]that are not relevant third parties for this case. Speir has not shown that these third parties provide anything more than generic components. Nor has Speir shown that they are of much relevance to the accused functionalities in case.
Apple also argues that the Court should disregard Speir's prior art witnesses because it has presented no “credible evidence of the current location of named inventors.” Id. To support its theory that these prior art inventors, Apple performed an investigation to determine these inventors' current locations. Id. In Apple's investigation, Apple determined that “at least two of these witnesses now live in California and Massachusetts.” Id. at 4. The Court agrees in part and finds that Speir has shown that there are four prior art witnesses that this Court can compel.
Apple argues that six other prior art witnesses reside in the NDCA. Id. Apple raises these witnesses for the first time in its reply. Speir filed a separate motion to strike these witnesses from Apple's reply brief. ECF No. 60. The Court will now address Speir's motion to strike. Speir contends that the Court should strike these witnesses because Apple failed to make any identification of prior art witnesses in its opening motion and has thus waived the ability to rely on these six witnesses. Id. at 1. The Court agrees.
As the movant, Apple bears the burden to come forth with all supporting evidence in its motion-it is inappropriate and unfair to withhold the identification of witnesses until a reply. In recent cases with similar facts, this Court ruled against transfer movants when attempting to first identify witnesses in reply. Scramoge Tech. Ltd. v. Samsung Elecs. Co., No. 6:21-cv-00454, ECF No. 92, at 7 (W.D. Tex. May 23, 2022); Scramoge Tech. Ltd. v. Google LLC, No. 6:21-cv-00616, ECF No. 72, at 4-5 (W.D. Tex. May 20, 2022); Scramoge v. Apple II, No. 6:21-cv-01071, ECF No. 56 (W.D. Tex. Aug. 26, 2022). Apple knows this, as it sought leave of Court in a similar situation where Apple sought to add transfer witnesses after filing its motion. See Aire Tech. Ltd. v. Apple Inc., No. 6:21-cv-1101, ECF No. 39 (W.D. Tex. June 22, 2022). In a recent case, Google likewise attempted to excuse its improperly added reply prior art witnesses by arguing that the transfer non-movant “first identified prior art inventors in its Transfer Opposition” and “[a]s such, Google's identification of four prior art inventors in NDCA in its Transfer Reply is not ‘new evidence and argument' . . . but is proper rebuttal.” Scramoge Tech. Ltd. v. Google LLC, No. 6:21-cv-00616, ECF No. 63, at 4 (W.D. Tex. May 19, 2022). The Court did not credit that excuse and struck Google's new prior art witnesses. Id. ECF No. 72 at 4-5. Indeed, where “Apple has not shown that it did not have more granular facts at its disposal to support its original motion,” it is within the Court's discretion to conclude that the movant “failed to submit sufficient evidence to suggest that transfer was appropriate.” In re Apple Inc., 743 F.3d 1377, 1379, n.3 (Fed. Cir. 2014). The Court finds Apple's arguments in response to be unpersuasive. See ECF No. 62. Accordingly, the Court GRANTS Speir's motion to strike Apple's identification of six potential prior art witnesses from Apple's transfer reply brief as untimely.
In conclusion, Speir has shown four witnesses that this Court can compel, while Apple has shown that the NDCA can compel third-party Qualcomm. Therefore, the Court finds this factor neutral. But because neither party has shown any of the above parties are unwilling to testify, this factor “receives less weight.” In re Planned Parenthood Fed'n of Am., Inc., 52 F.4th at 630-31.
c. The relative ease of access to sources of proof favors transfer.
“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 Inc. v. Apple Inc., No. 6:18-cv-00372, 2019 WL 4743678, at *2 (W.D. Tex. Sept. 10, 2019). “[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). “In patent infringement cases, the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant's documents are kept weighs in favor of transfer to that location.” In re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir. 2020). However, the Fifth Circuit finds that “the location of evidence bears much more strongly on the transfer analysis when, as in Volkswagen, the evidence is physical in nature.” In re Planned Parenthood Fed'n of Am., Inc., No. 22-11009, 2022 WL 16549164, at *3 (5th Cir. Oct. 31, 2022).
i. The ease of accessing physical evidence is neutral
Both parties have failed to show with any particularity what physical evidence is in either the NDCA or the WDTX. Although Apple's declarants claim [Redacted]they do not identify any of that physical evidence with any particularity. See EcoFactor, Inc. v. Google LLC, No. 6-20-CV-00075-ADA, 2021 WL 1535413 (W.D. Tex. Apr. 16, 2021), aff'd, No. 2021-144 (Fed. Cir. Aug. 4, 2021) (“Google does not point with particularity to any relevant physical documents, nor does it confirm the existence of any physical documents located in the NDCA....As such, the Court is not persuaded by Google's vague and conclusory argument regarding physical documents”).
Speir, however, fails to also present any physical evidence in this District with any particularity. Speir explains that Apple admits that four WDTX employees [Redacted] ECF No. 55 at 4 (citing ECF No. 37-5 ¶¶ 6-9, 11). Speir similarly fails to show what these physical records and things are in the WDTX. See id. Speir also relies on supposed third-party sources of proof in two of Apple's suppliers who are based in Dallas-[Redacted]Id. at 7. As discussed above, however, Speir fails to show how the relevant components supplied by [Redacted] are relevant to the accused technologies in this case. Thus, the Court finds that these two suppliers are of minimal weight under this factor.
Because both parties have failed to show with any particularity what physical evidence is in either the NDCA or the WDTX, the Court finds that this weighs toward finding this factor neutral.
ii. The ease of accessing electronic evidence favors transfer
Similar to the willing witness factor above, the significant majority of relevant document custodians are in NDCA, including four custodians of business records and seven custodians of technical information. [Redacted] As it found above, the Court is convinced that Speir has demonstrated that there are four relevant Apple witnesses in Austin for the Accused '399 Patent Functionalities. These witnesses are weighed as relevant custodians in the WDTX [Redacted] But the relevant Apple document custodians in Austin that Speir identified are relevant only for the Accused '399 Patent Functionalities. Speir fails to identify any Apple document custodians in the WDTX that are relevant for the remaining accused functionalities, including the Accused '780 Functionalities and the Accused '777/'779 Functionalities. This favors transfer to the NDCA.
With respect to the same defendant, the Federal Circuit ruled that the correct analysis under this factor is look to the location of Apple's servers in combination with the locations of individuals who can access those servers. In re Apple Inc., No. 2022-128, 2022 WL 1196768, at *4 (Fed. Cir. Apr. 22, 2022); In re Google LLC, No. 2021-178, 2021 WL 5292267, at *2 (Fed. Cir. Nov. 15, 2021) (ruling a Court should also consider “the location of document custodians and location where documents are created and maintained, which may bear on the ease of retrieval.”) Under this factor, Speir has identified custodians in Austin [Redacted] but they are relevant only for the Accused '399 Patent Functionalities. Thus, the Court finds that the electronic documents are more conveniently accessed in the NDCA. This factor weighs in favor of transfer.
d. All other practical problems that make trial of a case easy, expeditious, and inexpensive is neutral.
Both parties concede that this factor is neutral. The Court agrees.
2. The public interest factors are neutral.
a. Administrative difficulties flowing from Court congestion weigh against transfer.
The relevant inquiry under this factor is “[t]he speed with which a case can come to trial and be resolved.” In re Genentech, 566 F.3d at 1347; In re Apple, 979 F.3d at 1343. A faster average time to trial means more efficient and economical resolutions of the claims at issue. That said, “[a] court's general ability to set a fast-paced schedule is not particularly relevant to this factor.” In re Apple, 979 F.3d at 1344. Moreover, when other relevant factors weigh in favor of transfer or are neutral, “then the speed of the transferee district court should not alone outweigh all of those other factors.” In re Genentech, 566 F.3d at 1347.
The Court finds this factor to weigh slightly against transfer. Google argues that the median time to trial in both districts is comparable: 867 days for the Northern District of California versus 702 for this Court. ECF No. 41 at 13. “While the Federal Circuit has previously held that there are “no significant differences in caseload or time-to-trial statistics” between the WDTX and the NDCA, In re Juniper Networks, Inc., 14 F.4th 1313, 1322 (Fed. Cir. 2021), recent data show that this Court has been able to hold trials faster than the Northern District of California, with an approximate time to trial of two years. The Federal Circuit has previously emphasized the importance of rapid disposition of patent cases. Kahn v. Gen. Motors Corp., 889 F.2d 1078, 1080 (Fed. Cir. 1989). It has even acknowledged Congress's interest in the “quick” resolution of patent disputes. See, e.g., Ethicon Endo-Surgery, Inc. v. Covidien LP, 826 F.3d 1366, 1367 (Fed. Cir. 2016). In view of Federal Circuit law and recent time-to-trial statistics, the Court finds this factor weighs slightly against transfer.
See, e.g., MV3 Partners v. Roku, Inc., 6:18-cv-00308-ADA (W.D. Tex., filed Oct. 16, 2018) (23.7 months from case filing to trial); Cloudof Change, LLC, v. NCR Corp., No. 6:19-cv-00513-ADA (W.D. Tex., filed August 30, 2019) (20.3 months from case filing to trial); VLSI Tech. LLC v. Intel Corp., No. 6:21-cv-00057-ADA (W.D. Tex., filed Apr. 11, 2019) (22.4 months from case filing to trial); Freshub, Inc. v. Amazon.Com Inc., No. 6:21-cv-00511-ADA (W.D. Tex., filed Jun. 24, 2019) (23.7 months from case filing to trial); ESW Holdings, Inc. v. Roku, Inc., No. 6:19-cv-00044-ADA (W.D. Tex., filed Feb. 8, 2019) (25.9 months from case filing to trial); Profectus Tech. LLC v. Google LLC, 6:20-cv-00101-ADA (W.D. Tex., filed Feb. 10, 2020) (19.6 months from case filing to trial); Jiaxing Super Lighting v. CH Lighting Tech., 6:20-cv-00018-ADA (W.D. Tex., filed Jan. 10, 2020) (21.7 months from case filing to trial); VideoShare LLC v. Google LLC, 6:19-cv-663-ADA (W.D. Tex., filed Nov. 15, 2019) (23.8 months from case filing to trial); NCS Multistage Inc. v. Nine Energy Serv.'s, Inc., No. 6:20-cv-00277-ADA (W.D. Tex., filed Mar. 24, 2020) (21.8 months from case filing to trial); EcoFactor, Inc. v. Google LLC, No. 6:20-cv-00075-ADA (W.D. Tex., filed Jan. 31, 2020) (24 months from case filing to trial); Densys Ltd. v. 3Shape Trio A/S, 6:19-cv-00680-ADA (W.D. Tex., filed Nov. 26, 2019) (28.3 months from case filing to trial); Appliance Computing III, Inc. v. Redfin Corp., No. 6:20-cv-00376-ADA (W.D. Tex., filed May 11, 2020) (24 months from case filing to trial); Caddo Sys. Inc., v. Microchip Tech. Inc., No. 6:20-cv-00245-ADA (W.D. Tex., filed March 27, 2020) (26.5 months from case filing to trial); SunStone Info. Def., Inc. v. International Bus. Machines Corp., No. 6:20-cv-1033-ADA (W.D. Tex., filed Nov. 9, 2020) (21.0 months from case filing to trial); NCS Multistage Inc. v. TCO Products Inc., No. 6:20-cv-00622-ADA (W.D. Tex., filed Sept. 9, 2020) (23.4 months from case filing to trial); Ravgen, Inc. v. Lab. Corp. of Am. Holdings, No. 6:20-cv-00969-ADA (W.D. Tex. filed Nov. 16, 2020) (23.1 months from case filing to trial).
b. The local interest in having localized interests decided at home favors transfer.
Under this factor, the Court must evaluate whether there is a local interest in deciding local issues at home. Volkswagen II, 545 F.3d at 317. Local interests in patent case “are not a fiction.” In re Samsung Elecs. Co., Nos. 2021-139, 2021-140, 2021 U.S. App. LEXIS 19522, at *20 (Fed. Cir. June 30, 2021). “A local interest is demonstrated by a relevant factual connection between the events and the venue.” Word to Info, Inc. v. Facebook, Inc., No. 3:14-cv-04387-K, 2015 WL 13870507, at *4 (N.D. Tex. Jul. 23, 2015). Accordingly, “the sale of an accused product offered nationwide does not give rise to a substantial interest in any single venue.” In re Hoffmann-La Roche Inc., 587 F.3d 1333, 1338 (Fed. Cir. 2009). “This factor most notably regards not merely the parties' significant connections to each forum writ large, but rather the ‘significant connections between a particular venue and the events that gave rise to a suit.'” In re Apple, 979 F.3d at 1344 (quoting In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010)) (emphasis in original). But courts should not heavily weigh a party's general contacts with a forum that are untethered from the lawsuit, such as a general presence in the district. Id. Moreover, “little or no weight should be accorded to a party's ‘recent and ephemeral' presence in the transferor forum, such as by establishing an office in order to claim a presence in the district for purposes of litigation.” In re Juniper Networks, Inc., 14 F.4th 1313, 1320 (Fed. Cir. 2021) (quoting In re Microsoft Corp., 630 F.3d 1361, 1365 (Fed. Cir. 2011)). To determine which district has the stronger local interest, the Court looks to where the events forming the basis for infringement occurred. See id.
Apple argues that the NDCA has a local interest in this case because Apple is a California corporation, has its headquarters there. Apple argues that “the design and development of the Accused Technologies occurred in Cupertino, with the majority of the relevant engineering teams responsible for the Accused Technologies, as well as the sales, licensing, and marketing teams, still located in N.D. Cal.” ECF No. 37 at 13. Apple then argues against its general presence in the WDTX. Id. Apple argues that its “general presence in Texas is entitled to little weight.” Id.
Speir argues that because Apple concedes that its “general presence” in a forum is irrelevant to this factor, the Court should consider neither Apple's headquarters in NDCA nor its “more than [Redacted] people who work in or near its headquarters.” Id. Speir then asserts that this this factor is split between NDCA and WDTX when viewing where the accused technologies were developed, as well as [Redacted] Id.
Apple replies that Speir's contention that the Court should not consider Apple's NDCA headquarters and the more than [Redacted] people who work in or near there is contrary to law. ECF No. 57 at 5. Apple again reiterates its argument that Speir's allegations here are directed towards a half-dozen technologies other than the accused '399 Patent Functionalities. Id. The engineering teams responsible for designing and developing those other accused technologies, as well as all sales, licensing, and marketing teams, have no presence in Texas-all are undisputedly in NDCA. The Court agrees with Apple and finds that this factor favors transfer to the NDCA. In conclusion, this factor favors transfer to NDCA and cancels out the faster time to trial here in the WDTX.
c. Familiarity of the forum with the law that will govern the case is neutral.
The parties agree this factor is neutral.
d. Avoidance of unnecessary problems of conflict of laws or in the application of foreign law is neutral.
The parties agree this factor is neutral.
IV. CONCLUSION
Having considered the private and public interest factors, Court's conclusions for each factor is summarized in the following table:
Factor
The Court's Finding
Relative ease of access to sources of proof
Favors transfer
Availability of compulsory process to secure the attendance of witnesses
Neutral
Cost of attendance for willing witnesses
Favors transfer
All other practical problems that make trial of a case easy, expeditious and inexpensive
Neutral
Administrative difficulties flowing from court congestion
Weighs slightly against transfer
Local interest
Favors transfer
Familiarity of the forum with law that will govern case
Neutral
Problems associated with conflict of law
Neutral
Four factors are neutral, local interest favors transfer, access to sources of proof favors transfer, cost of attendance for willing witnesses favors transfer, and the court-congestion factor weighs slightly against transfer. Given the foregoing, the Court finds that Apple has shown that the NDCA is a clearly more convenient than this District. Apple's Motion is therefore GRANTED. Speir's motion to strike (ECF No. 60) Apple's identification of six potential prior art witnesses from Apple's transfer reply brief as untimely is also GRANTED.
The Clerk of the Court is hereby ORDERED to transfer this case to the Northern District of California.
SIGNED.