Case 3:22-cv-04806-TSH Document 42 Filed 08/22/22 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`GESTURE TECHNOLOGY PARTNERS,
`LLC,
` Plaintiff
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`-vs-
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`APPLE INC.,
` Defendant
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`6:21-CV-00121-ADA
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Defendant Apple’s (“Defendant” or “Apple”) Motion to Transfer
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`Venue under 28 U.S.C. § 1404(a) to the Northern District of California. ECF No. 21. Plaintiff
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`Gesture Technology Partners, LLC (“Plaintiff” or “Gesture”) filed its response (ECF No. 34) and
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`Apple its reply (ECF No. 37). After careful consideration of the parties’ briefs and the applicable
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`law, the Court GRANTS Apple’s motion.
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`I.
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`BACKGROUND
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`Plaintiff Gesture, an Ohio Corporation headquartered in Toledo, Ohio, filed suit on
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`February 4, 2021. See ECF No. 1. Gesture accuses a variety of Apple iPhones and iPads (the
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`“accused products”) of infringing U.S. Patent Nos. 8,194,924 (“the ’924 Patent”), 7,933,431
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`(“the ’431 Patent”), 8,878,949 (“the ’949 Patent”), and 8,553,079 (“the ’079 Patent”)
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`(collectively, the “Asserted Patents”). See generally, id. The Asserted Patents relate to using
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`cameras and gestures detected by the cameras or other sensors to control functions in the device
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`for different applications. Id. The complaint accused several Apple applications in the Accused
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`Products, including Face ID, QR Scanner, Smart HDR, tracking autofocus, picture face
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`recognition, selfie focus, autofocus area, optical image stabilization, portrait mode, switch
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`control, and Animojis. Id. Apple has moved to transfer venues from the Western District of
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`Texas (the “WDTX”) to the Northern District of California (the “NDCA”). See generally ECF
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`No. 21.
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`II.
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`LEGAL STANDARD
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`In patent cases, motions to transfer under 28 U.S.C. § 1404(a) are governed by the law of
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`the regional circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). 28 U.S.C.
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`§ 1404(a) provides that, “[f]or the convenience of parties and witnesses . . . a district court may
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`transfer any civil action to any other district or division where it might have been brought or to
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`any district or division to which all parties have consented.” Id. “Section 1404(a) is intended to
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`place discretion in the district court to adjudicate motions for transfer according to an
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`‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v.
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`Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
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`The preliminary question under Section 1404(a) is whether a civil action “might have
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`been brought” in the transfer destination venue.” In re Volkswagen, Inc., 545 F.3d 304, 312 (5th
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`Cir. 2008) (hereinafter “Volkswagen II”). If the destination venue would have been a proper
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`venue, then “[t]he determination of ‘convenience’ turns on a number of public and private
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`interest factors, none of which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S.
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`Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004). The private factors include: “(1) the
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`relative ease of access to sources of proof; (2) the availability of compulsory process to secure
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`the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other
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`practical problems that make trial of a case easy, expeditious and inexpensive.” In re Volkswagen
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`AG, 371 F.3d 201, 203 (5th Cir. 2004) (hereinafter “Volkswagen I”) (citing Piper Aircraft Co. v.
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`Reyno, 454 U.S. 235, 241 n.6 (1982)). The public factors include: “(1) the administrative
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`difficulties flowing from court congestion; (2) the local interest in having localized interests
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`decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4)
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`the avoidance of unnecessary problems of conflict of laws of the application of foreign law.” Id.
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`Courts evaluate these factors based on the situation which existed at the time of filing, rather
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`than relying on hindsight knowledge of the defendant’s forum preference. Hoffman v. Blaski, 363
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`U.S. 335, 343 (1960).
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`The burden to prove that a case should be transferred for convenience falls squarely on
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`the moving party. Volkswagen II, 545 F.3d at 314. The burden that a movant must carry is not
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`that the alternative venue is more convenient, but that it is clearly more convenient. Id. at 314–
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`15. Although the plaintiff’s choice of forum is not a separate factor entitled to special weight,
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`respect for the plaintiff’s choice of forum is encompassed in the movant’s elevated burden to
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`demonstrate that the proposed transferee forum is “clearly more convenient” than the forum in
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`which the case was filed. Id. While “clearly more convenient” is not necessarily equivalent to
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`“clear and convincing,” the moving party “must show materially more than a mere
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`preponderance of convenience, lest the standard have no real or practical meaning.” Quest
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`NetTech Corp. v. Apple, Inc., No. 2:19-cv-118, 2019 WL 6344267, at *7 (E.D. Tex. Nov. 27,
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`2019).
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`III. DISCUSSION
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`A. Gesture could have brought this case in the Northern District of California.
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`The threshold determination in the § 1404(a) analysis is whether this case could initially
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`have been brought in the destination venue—the NDCA. Apple asserts that this case could have
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`been brought in the NDCA because Apple maintains its headquarters in Cupertino, California.
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`ECF No. 21 at 6. Gesture does not dispute this assertion. See generally, ECF No. 34. This Court
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`finds that venue would have been proper in the NDCA had Gesture originally filed this case
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`there. Thus, the Court proceeds with its analysis of the public and private interest factors to
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`determine if the NDCA is clearly more convenient than the WDTX.
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`B. The Private Interest Factors
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`1. The Relative Ease of Access of Sources of Proof
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`“In considering the relative ease of access to proof, a court looks to where documentary
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`evidence, such as documents and physical evidence, is stored.” Fintiv Inc. v. Apple Inc., No.
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`6:18-cv-00372, 2019 WL 4743678, at *2 (W.D. Tex. Sept. 10, 2019). “[T]he question is relative
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`ease of access, not absolute ease of access.” In re Radmax, 720 F.3d 285, 288 (5th Cir. 2013)
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`(emphases in original). “In patent infringement cases, the bulk of the relevant evidence usually
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`comes from the accused infringer. Consequently, the place where the defendant’s documents are
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`kept weighs in favor of transfer to that location.” In re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir.
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`2020) (citing In re Genentech, 566 F.3d 1338, 1345 (Fed. Cir. 2009)).
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`Apple maintains that this factor heavily favors transfer because the “relevant documents
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`and information are in California.” ECF. No. 21 at 8. Apple concedes that there may be Apple
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`documents located in the WDTX, however, it argues that none of those documents are relevant
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`to this suit. Id. To give credence to this conclusion, Apple points to potentially relevant Apple
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`personnel confirmations that the relevant documents are housed in Apple’s office in Cupertino.
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`Id. Furthemore, Apple contends that the majority of the research, design, development, source
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`code, and generation of documents related to the accused products took place in the NDCA. Id.
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`Apple also maintains that all the relevant financial and marketing documents are in or around the
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`NDCA. Id.
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`Gesture argues that Apple has not met its burden and that it failed “to identify with
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`specificity that any hard copies of documents are located in NDCA.” ECF No. 34 at 4. Gesture
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`further contends that Apple made no showing concerning the location of the “relevant source
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`code” and Apple admits that some of the key documents were generated outside the NDCA. Id.
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`Gesture also asserts that Apple employees with the appropriate credentials can access Apple
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`documents from anywhere, including Texas. Id. Furthermore, Gesture argues that Apple’s Austin
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`campus is instrumental in the development of the accused products as was demonstrated by
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`Johnny Srouki’s 2016 statement that Apple’s Austin team is “Apple’s biggest research and
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`development group outside of its Cupertino, Calif. Headquarters.” Id. at 5. Additionally, Gesture
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`points to similar statements made by Mr. Srouki that Apple’s Austin team “plays a critical and
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`integral role—they are designing chips that go into all the devices [Apple] sell[s]. Id. at 5–6. In a
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`last-dtitch effort to demonstrate Apple’s relevant operations in the WDTX, Gesture states that
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`Apple “currently lists 35 job openings in Austin for work relevant to its camera and video
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`technology.” Id. at 6.
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`This factor favors transfer as Apple has identified a specific group of relevant documents
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`and source code that are mostly located in NDCA. ECF No. 21 at 8. The relevant inquiry,
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`contrary to Gestures point, is whether the bulk of the evidence/documents are stored in the
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`transferee district. The Court will give no weight to Gesture’s argument that the relevant
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`documents are easily accessible by employees with the appropriate credentials outside the space
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`in which they are located. Similarly, Gesture’s contention that some of the relevant documents
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`were “not generated only in NDCA” is misplaced. “The fact that some evidence is stored in
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`places other than either the transferor or the transferee forum does not weigh against transfer.”
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`Juniper Networks, 14 F.4th 1313, 1321. The Court is not convinced by Gesture’s argument that
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`the statements by Mr. Srouki bear any relevance to this analysis. The size of Apple’s Austin
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`campus, job openings, and “chip” development are not factors which, by themselves,
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`demonstrate that potentially relevant employee witnesses, or physical documents for that matter,
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`are located in the WDTX. At best these statements yield speculation as to whether relevant
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`documents are located here. Furthermore, job listings by Apple could equally point to the
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`opposite conclusion, that Apple is in need of these types of employees because the Austin office
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`currently lacks them. Thus, the Court finds that this factor favors transfer.
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`2. The Availability of Compulsory Process to Secure the Attendance of Witnesses
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`Under the Federal Rules, a court may subpoena a witness to attend trial only (a) “within
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`100 miles of where the person resides, is employed, or regularly transacts business in person”; or
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`(b) “within the state where the person resides, is employed, or regularly transacts business in
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`person, if the person . . . is commanded to attend a trial and would not incur substantial expense.”
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`FED. R. CIV. P. 45(c)(1)(A), (B)(ii); Gemalto S.A. v. CPI Card Grp. Inc., No. 15-CA-0910, 2015
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`WL 10818740, at *4 (W.D. Tex. Dec. 16, 2015). Under this factor, the Court focuses on non-
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`party witnesses whose attendance may need to be secured by a court order.” Fintiv Inc., No.
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`6:18-cv-00372, 2019 WL 4743678, at *14 (citing Volkswagen II, 545 F.3d at 316); see also In re
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`Juniper, 14 F.4th 1313, 1316 (Fed. Cir. 2021) (“the private factors are . . . (2) the availability of
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`compulsory process to secure the attendance of non-party witnesses whose attendance may need
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`to be compelled by court order . . .”) (emphasis added).
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`Apple maintains that this factor favors transfer. Apple’s sole argument for this factor lies
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`in that Apple is unaware of any potential third-party witnesses that would be within the subpoena
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`power of the WDTX. ECF No. 21 at 9. Gesture, however, contends that Apple failed to identify
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`any third-party witnesses, and that this factor is neutral for that reason. ECF No. 34 at 6. Because
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`no witnesses have been identified by either party in both the WDTX and the NDCA, this factor is
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`neutral.
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`3. The Cost of Attendance and Convenience for Willing Witnesses
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`The most important factor in the transfer analysis is the convenience of the witnesses. In
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`re Genentech, Inc., 566 F.3d at 1342. When analyzing this factor, the Court should consider all
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`potential material and relevant witnesses. Alacritech Inc. v. CenturyLink, Inc., No. 2:16-CV-
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`00693, 2017 WL 4155236, at *5 (E.D. Tex. Sept. 19, 2017). “When the distance between an
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`existing venue for trial of a matter and a proposed venue under § 1404(a) is more than 100 miles,
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`the factor or inconvenience to witnesses increases in direct relationship to the additional distance
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`to be traveled.” Volkswagen II, 545 F.3d at 317 (quoting Volkswagen I, 371 F.3d at 203). The
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`Federal Circuit has stated that courts should not apply the rule “rigidly” in some cases where
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`witnesses would be required to travel a significant distance no matter where they testify. In re
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`Apple, 979 F.3d at 1342 (discussing witnesses traveling from New York) (citing Volkswagen II,
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`545 F.3d at 317). “[T]he inquiry should focus on the cost and inconvenience imposed on the
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`witnesses by requiring them to travel to a distant forum and to be away from their homes and
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`work for an extended period of time.” In re Google, LLC, No. 2021-170, 2021 WL 4427899, at
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`*4 (Fed. Cir. Sept. 27, 2021). In essence, the Federal Circuit has found that time away from an
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`individual’s home is a more important metric than distance. Id.
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`Apple maintains that this factor strongly favors transfer. Apple has noted “at least ten
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`likely Apple witnesses who are based in NDCA, with none in Texas.” ECF No. 21 at 9. Apple
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`says that because the products were developed in NDCA, that it would make the most sense for
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`the witnesses to also have been located there as the researchers and developers are in Cupertino.
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`Id. The comparison in travel to each district is also significant from Cupertino and either WDTX
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`or NDCA. Id. Apple provides that its “witnesses are all a short car ride from the courthouses in
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`NDCA” but would be “more than 1,500 miles and a lengthy plane ride from Waco.” Id. Apple
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`states it is unaware of any likely Apple witnesses in the WDTX as the employees who work
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`there are not the engineers that created the product. Id. at 11. Apple also highlights the fact that
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`Gesture has one employee, Timothy Pryor, and that he is not located in either district as he is in
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`Ohio. Id. at 10.
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`Gesture, however, argues that this factor does not favor transfer. Gesture’s argument is
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`based on allegations that Apple’s witnesses are from a biased selection. ECF No. 34 at 7. Gesture
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`relies heavily on the declaration of Mr. Mark Rollins and that he listed himself as a witness when
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`he likely does not have relevant knowledge and likely will not testify at trial. Id. at 8. Gesture
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`references the Rollins Declaration to confirm that Mr. Rollins “did not speak with anyone in
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`Texas to see if they had any information relevant to the case.” Id. at 7. Gesture also points out
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`that Apple “does not deny that there are potential witnesses in Texas” and that it “fail[s] to deny
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`the presence of operations, marketing, and finance personnel relevant in Texas.” Id. at 9–10.
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`Gesture refers to Apple’s witnesses as “may be” witnesses and contends that it is likely those
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`witnesses will not actually testify at trial, and therefore, should not be given too much weight in
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`deciding this factor. Id. at 7–8.
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`This Court has recently addressed the credibility of Mr. Rollins’s declarations. Taking
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`those considerations into account, the Court assesses little weight to Apple’s proposed witnesses.
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`As has been explained repeatedly, it is improper for movants to seek transfer but fail to provide
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`sufficient discovery or conduct thorough investigations as to sources of proof and witnesses
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`within the transferor forum. The Court finds that, given these credibility considerations, the
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`WDTX and NDCA each likely have relevant witnesses, though the NDCA likely has more.
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`Gesture’s proposed witnesses, including the sole inventor and its representative, along with the
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`prosecution attorney for the Asserted Patents, do not tip the scales for this factor either. For these
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`reasons, this factor, at most, only slightly favors transfer.
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`4. All Other Practical Problems That Make Trial of a Case Easy, Expeditious and
`Inexpensive
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`When considering the private interest factors, courts must consider “all other practical
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`problems that make trial of a case easy, expeditious and inexpensive.” Volkswagen II, 545 F.3d
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`at 314. “Particularly, the existence of duplicative suits involving the same or similar issues may
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`create practical difficulties that will weigh heavily in favor or against transfer.” PersonalWeb
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`Techs., LLC v. NEC Corp. of Am., Inc., No. 6:11-cv-655, 2013 WL 9600333, at *5 (E.D. Tex.
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`Mar. 21, 2013). “[W]here there is a co-pending litigation . . . involving the same patent-in-suit,
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`… pertaining to the same underlying technology and accusing similar services, . . . the Federal
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`Circuit cannot say the trial court clearly abuses its discretion in denying transfer.” In re
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`Vistaprint Ltd., 628 F.3d at 1346 n.3.
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`Apple maintains that this factor is either neutral or slightly favors transfer. Here, Apple
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`raises that Gesture has filed two other lawsuits pertaining to the same patents within the WDTX.
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`ECF No. 21 at 12. Additionally, Apple provides that Gesture has another two lawsuits in the
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`EDTX, which Apple argues as proof that Gesture has no issue litigating in multiple districts
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`simultaneously. Id. Gesture, however, contends that Apple ignored the other pending case before
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`the Court. ECF No. 37 at 5. Gesture argues that weight should not be given to the pending
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`WDTX case because it is not certain that the case will remain in the WDTX. Id.
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`The Court gives no weight to the other pending litigation, as that case was the subject of
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`venue concerns. See In re Google Inc., No. 2017-107, 2017 WL 977038, at *2 (Fed. Cir. Feb. 23,
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`2017). In fact, the defendants in the co-pending litigation filed their motion to dismiss before
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`Apple filed this Motion, putting the Court on notice of the potential venue issues. Ultimately, the
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`Court granted the defendants motion to dismiss for improper venue, mooting any benefit from
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`the parallel litigation. See Gesture Tech. Partners, LLC v. Lenovo Grp. Ltd., No. W-21-CV-
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`00122-ADA, 2021 WL 6205789, at *4 (W.D. Tex. Dec. 29, 2021). This factor is therefore
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`neutral.
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`C. The Public Interest Factors
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`1. The Administrative Difficulties Flowing from Court Congestion
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`This factor considers the “[t]he speed with which a case can come to trial and be
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`resolved[.].” In re Genentech, Inc., 566 F.3d at 1347. Additionally, court congestion is
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`considered “the most speculative” factor, and when “relevant factors weigh in favor of transfer
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`and others are neutral, then the speed of the transferee district court should not alone outweigh
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`all those other factors.” Id.
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`Apple originally argued that this factor favors transfer because the WDTX, compared to
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`the transferee forum, has considerably more patent cases on its docket and is slower to dismiss.
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`See generally ECF No. 21 at 4. This argument, though creative, is not directly aimed at the
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`appropriate inquiry. The test is not concerned with the speed of dismissal but rather the“speed
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`with which a case can come to trial and be resolved.” In re Genentech, Inc., 566 F.3d at 1347.
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`Gesture argues that the time-to-trial in the WDTX is “more than 90 days faster” than the
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`time-to-trial in the NDCA. ECF. No. 34 at 13. Furthermore, Gesture shows that the NDCA’s
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`median time to dismissal is shorter than WDTX by a mere 17 days since 2000. Gesture argues
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`that such a broad date range cannot be instructive on the current court congestion differences
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`between the two venues. Id. Apple offers no statistical counter to Gesture’s time to trial data.
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`Instead, it relies on the Federal Circuit’s findings that “the Western District of Texas and the
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`Northern District of California show no significant differences in caseload or time-to-trial
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`statistics.” Juniper Networks, 14 F.4th at 1322.
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`Given the statistics provided in Gesture’s briefing and lack thereof from Apple, the Court
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`finds that this case would likely reach trial faster in this forum compared to the transferee forum.
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`Yet, the Court gives this factor less weight as it is “the most speculative.” In re Genentech, 566
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`F.3d at 1347. Thus, this factor weighs slightly against transfer.
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`2. The Local Interest in Having Localized Interests Decided at Home
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`Courts must evaluate whether there is a local interest in deciding local issues at home.
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`Volkswagen II, 545 F.3d at 317. Local interests in a patent case “are not a fiction.” In re Samsung
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`Elecs. Co., Nos. 2021-139, 2021-140, 2021 U.S. App. LEXIS 19522, at *20 (Fed. Cir. June 30,
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`2021). “A local interest is demonstrated by a relevant factual connection between the events and
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`the venue.” Word to Info, Inc. v. Facebook, Inc., No. 3:14-cv-04387-K, 2015 WL 13870507, at
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`*4 (N.D. Tex. Jul. 23, 2015). “[T]he sale of an accused product offered nationwide does not give
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`rise to a substantial interest in any single venue.” In re Hoffmann-La Roche Inc., 587 F.3d 1333,
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`1338 (Fed. Cir. 2009). “This factor most notably regards not merely the parties’ significant
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`connections to each forum writ large, but rather the ‘significant connections between a particular
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`venue and the events that gave rise to a suit.’” In re Apple, 979 F.3d at 1344 (quoting In re Acer
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`Am. Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010)) (emphasis in original). “Important
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`considerations include the location of the injury, witnesses, and the Plaintiff’s residence. Def.
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`Distributed v. Bruck, 30 F.4th 414, 435 (5th Cir. 2022).
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`Apple maintains that this factor strongly favors transfer for three reasons: “(1) Apple’s
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`work on the research, design, development, and operation of the accused features primarily takes
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`place there; (2) Apple’s headquarters are located there; and, (3) all of Apple’s likely witnesses
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`are based there. ECF No. 21 at 14 (citing Wet Sounds, Inc. v. Audio Formz, LLC, No. A-17-CV-
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`141-LY, 2017 WL 4547916, at *4 (W.D. Tex. Oct. 11, 2017), report and recommendation
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`adopted, No. 1:17-CV-141-LY, 2018 WL 1219248 (W.D. Tex. Jan. 22, 2018). Apple posits that
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`although Apple has a presence in Austin, the likely relevant witnesses are in the NDCA as that is
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`where the accused products were developed and where Apple is headquartered. Id. Apple also
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`raises that Gesture’s only apparent connection to the WDTX is its other pending cases. Id.
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`Gesture, however, suggests that the WDTX is the better forum for litigation, and Apple
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`has ample connection because its “second-largest campus” is in Austin. ECF No. 34 at 13.
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`Gesture’s main argument lies in that quite a bit of Austin taxpayers’ money goes to the Apple
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`campus located there, and therefore the WDTX has an interest in deciding the case locally. Id.
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`Gesture also does not counter Apple’s argument by asserting that it has sufficient connections
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`with the forum.
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`Apple’s Austin campus, though growing, does not outweigh its headquarters in the
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`NDCA. Moreover, this factor focuses on the events giving rise to the suit, instead of where a
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`party maintains a footprint. Thus, this factor favors transfer.
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`3. The Familiarity of the Forum with the Law that will Govern the Case
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`The parties, and Court, agree that this factor is neutral.
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`4. Avoidance of Unnecessary Problems of Conflict of Laws or in the Application
`of Foreign Law
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`The parties, and Court, agree that this factor is neutral.
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`IV. CONCLUSION
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`Having reviewed all the public and private interest factors, the Court finds that Apple has
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`met its burden to show that the NDCA is clearly more convenient. Defendant Apple’s Motion to
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`Transfer Venue under 28 U.S.C. § 1404(a) to the Northern District of California (ECF No. 21) is
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`hereby GRANTED. The Clerk of the Court shall transfer this case to the United States District
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`Court for the Northern District of California for all further proceedings. After transfer, the clerk
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`shall close the case.
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`SIGNED this 22nd day of August, 2022.
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`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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`13
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