Case 3:22-cv-01263-B Document 139 Filed 03/14/23 Page 1 of 22 PageID 4128
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
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`CIVIL ACTION NO. 3:22-CV-1263-B
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`§§
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`§§
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`§§
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`§§§
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`§
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`DDC TECHNOLOGY, LLC,
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` Plaintiff,
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`v.
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`GOOGLE LLC and ORORA
`PACKAGING SOLUTIONS,
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` Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Defendant Google LLC’s Motion to Transfer Venue and Sever (Doc.
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`94). Because the Court finds that convenience and justice favor transfer and otherwise outweigh
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`concerns of judicial efficiency, the Court GRANTS the Motion, SEVERS Plaintiff DDC
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`Technology, LLC (“DDC”)’s claims against Google, and TRANSFERS the claims against
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`Google to the United States District Court for the Northern District of California. DDC’s claims
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`against Defendant Orora Packaging Solutions (“OPS”) remain before this Court.
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`I.
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`BACKGROUND
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`This is a patent infringement case. DDC originally sued six different entities for direct
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`and indirect infringement of patents (collectively, the “Asserted Patents”)1 relating to a
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` 1 The patents include United States Patent No. 9,420,075, entitled “Virtual Reality Viewer and Input
`Mechanism,” which issued on August 16, 2016 (“the ‘075 Patent”); United States Patent No. 9,811,184,
`entitled “Virtual Reality Viewer and Input Mechanism,” which issued on November 7, 2017 (“the ‘184
`Patent”); United States Patent No. 10,528,199, entitled “Virtual Reality Viewer and Input Mechanism,”
`which issued on January 7, 2020 (“the ‘199 Patent”); United States Patent No. 11,093,000, entitled “Virtual
`Reality Viewer and Input Mechanism,” which issued on August 17, 2021 (“the ‘000 Patent”); and United
`States Patent No. 11,093,001, entitled “Virtual Reality Viewer and Input Mechanism,” which issued on
`August 17, 2021 (“the ‘001 Patent”). Doc. 123, Am. Compl., ¶ 3.
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`-1-
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`Google Ex. 1012, p. 001
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`Case 3:22-cv-01263-B Document 139 Filed 03/14/23 Page 2 of 22 PageID 4129
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`cardboard virtual reality viewer. See generally Doc. 1, Orig. Compl. In short, in lieu of an
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`expensive virtual reality headset, a user equipped with the cardboard viewer can insert their
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`smartphone into the viewer to create a makeshift virtual reality headset:
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`Doc. 1-1, Ex. A, 5 (depicting the ‘075 Patent).
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` In June 2014, Google presented its first version of a cardboard viewer at an annual
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`conference. Doc. 123, Am. Compl., ¶ 24. Around that time, a separate company, DODOcase,
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`Inc., owned in part by Patrick Buckley, contacted Google regarding a potential business
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`relationship. See id. ¶¶ 4, 27. Specifically, Buckley emailed several Google employees—Andrew
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`Nartker, Alex Kauffman, and Clay Bavor—regarding a “conductive tap button” for the virtual
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`viewer that could improve its functionality. See id. ¶¶ 27–29. DODOcase shortly thereafter filed
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`its first provisional application to which the Asserted Patents are related. Id. ¶ 30.
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`Around March 2015, Google created the “Works With Google Cardboard” Program
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`(“WWGC Program”). Id. ¶ 38. The idea underlying the WWGC Program was that Google would
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`disseminate manufacturing and marketing guidelines to third parties to create their own
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`cardboard viewers. See id. ¶¶ 43–45. See generally Doc. 123-15, Ex. O. Google also provided
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`-2-
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`Google Ex. 1012, p. 002
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`software development guidelines for developers to create compatible applications. Doc. 123-15,
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`Ex. O, 2. Together, the WWGC Program would function as an ecosystem where users could
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`utilize the cardboard viewers on a host of compatible applications. Doc. 123, Am. Compl., ¶ 43
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`For manufacturers to be a part of the WWGC Program, they had to submit samples of
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`their cardboard viewers for Google’s approval and evaluation. See id. ¶¶ 41, 43–44. Once Google
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`approved, the manufacturers could then indicate their viewer worked with the WWGC Program
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`by printing a WWGC badge and QR code on the viewer. Id.; see also Doc. 123-15, Ex. O, 2.
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`DODOcase’s virtual viewer was a part of the WWGC Program. Doc. 123, Am. Compl., ¶ 40.
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`In May 2015, Google launched a second version of its viewer, the Google Cardboard V2 Viewer.
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`Id. ¶¶ 46, 48. Around this time, DODOcase filed a second provisional application relating to the
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`Asserted Patents now at issue. Id. ¶ 47.
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`In 2016, however, after several years of selling its products, DODOcase suffered “price
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`pressures resulting from infringers importing competitive products” and was forced stop sales and
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`production. Id. ¶¶ 6–7. In 2018, weary of litigation, DODOcase assigned the Asserted Patents to
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`DDC under an agreement that DODOcase would “retain[] a financial interest [in] recoveries
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`from enforcement of the Asserted Patents.” Id. ¶ 8.
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`As the successor in interest, DDC filed suit in June 2022 against six different entities who
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`allegedly violated the Asserted Patents. Doc. 1, Orig. Compl. DDC sued Google for direct
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`infringement of the Asserted Patents based on the Google Cardboard V2 Viewer or other
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`“substantively similar” products. Id. ¶¶ 21, 74. DDC also sued several third-party manufacturers
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`for their virtual viewers. See id. ¶¶ 16–20. And finally, DDC sued Google for indirect patent
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`infringement by inducing third-party manufacturers—including the other defendants—to
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`-3-
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`Google Ex. 1012, p. 003
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`infringe the Asserted Patents through the WWGC Program and by advertising the viewer as
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`“open source.” E.g., id. ¶¶ 251–52.
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`DDC however, eventually dismissed most of the defendants from suit. That is, within
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`seven months of filing suit, DDC had filed notices or stipulations of dismissal on four of the six
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`defendants.2 A fifth defendant—Landsberg Orora—was dismissed by Court order on December
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`19, 2022, for lack of personal jurisdiction after the Court determined, in short, that DDC had
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`seemingly “sued the wrong entity within the broader corporate family.” Doc. 103, Mem. Op. &
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`Order, 4. Google was the single remaining defendant in the suit, with a pending motion to sever
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`and transfer venue. See Doc. 94, Mot. Transfer.
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`In February 2023, however, DDC filed an amended complaint. Doc. 123, Am. Compl.
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`DDC added a new Landsberg entity—OPS—in Landsberg Orora’s place. See id. The allegations
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`in the new complaint are similar. DDC sues Google for direct infringement for the Google
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`Cardboard V2 Viewer, but it also includes direct infringement claims for other WWGC Program
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`viewers that Google advertised and linked on its site. E.g., id. ¶¶ 76, 116. DDC also maintains its
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`indirect infringement suits against Google for inducing the other—now former—defendants to
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`directly infringe the Asserted Patents. E.g., id. ¶ 159.
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`DDC sues OPS for direct infringement for (1) allegedly manufacturing the Google
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`Cardboard V2 Viewer on Google’s behalf and (2) manufacturing its own OPS cardboard viewer,
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`which directly infringes the Asserted Patents. E.g., id. ¶¶ 20, 138.
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` 2 Defendant HMD TECH SARL (d/b/a Homido) was dismissed on October 6, 2022. Doc. 73, Not.
`Dismissal. Emerge Technologies, Inc. (d/b/a Utopia 360) was dismissed on October 24, 2022. Doc. 82, Joint
`Stip. Dismissal. Pyrite VR LTD (d/b/a Maxbox VR) and DDC reached a confidential settlement agreement
`on December 21, 2022. Doc 107, Stip. Final Consent J. & Perm. Inj. And Structural Graphics, LLC (d/b/a Red
`Paper Plane) was dismissed on January 6, 2023. Doc 109, Joint Stip. Dismissal.
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`-4-
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`Google Ex. 1012, p. 004
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`In its Motion to Transfer Venue and Sever the Case (Doc. 94), Google argues that
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`joinder of the (now dismissed) defendants was improper and, in any event, DDC’s case against it
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`should be severed and transferred to the Northern District of California. Doc. 94, Mot. Transfer.
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`Though Google’s Motion preceded the dismissal of several defendants and the amended
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`complaint, Google’s arguments still apply, and the Motion is ripe before the Court.
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`II.
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`LEGAL STANDARD
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`A.
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`Transfer of Venue
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`Even when venue is proper, a district court may transfer a civil action to another district
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`or division if (1) the plaintiff could have brought that action there originally and (2) the transfer
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`would be for “the convenience of parties and witnesses, in the interest of justice.” 28 U.S.C.
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`§ 1404(a). The movant must clearly establish both elements to “show good cause” for transfer.
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`See In re Volkswagen of Am., Inc., 545 F.3d 304, 314–15, 314 n.10 (5th Cir. 2008) (en banc)
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`[hereinafter Volkswagen II].
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`As to the first prong, a plaintiff may initially bring “any civil action for patent
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`infringement . . . in the judicial district where the defendant resides, or where the defendant has
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`committed acts of infringement and has a regular and established place of business.” 28 U.S.C. §
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`1400(b).
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`For the second prong, to determine if transfer would be for “the convenience of parties
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`and witnesses, in the interest of justice,” courts balance eight private- and public-interest factors.
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`See Def. Distributed v. Bruck, 30 F.4th 414, 433 (5th Cir. 2022) (internal quotation omitted).
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`“The private[-]interest factors are: (1) the relative ease of access to sources of proof; (2) the
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`availability of compulsory process to secure the attendance of witnesses; (3) the cost of
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`-5-
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`Google Ex. 1012, p. 005
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`attendance for willing witnesses; and (4) all other practical problems that make trial of a case
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`easy, expeditious and inexpensive.” Id. at 433–34 (internal quotations omitted). “The public[-]
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`interest factors bearing on transfer are: (1) the administrative difficulties flowing from court
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`congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity
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`of the forum with the law that will govern the case; and (4) the avoidance of unnecessary
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`problems of conflict of laws [or in] the application of foreign law.” Id. at 435 (internal quotations
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`omitted). No one factor is dispositive, although cost of attendance to witnesses is generally
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`regarded as the most important. BNSF Ry. Co. v. OOCL (USA), Inc., 667 F. Supp. 2d 703, 707,
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`711 (N.D. Tex. 2009) (Means, J.).
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`A plaintiff’s choice of venue is not a “distinct factor” in the transfer analysis. Volkswagen
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`II, 545 F.3d at 314 n.10. Instead, it is “treated as a burden of proof question,” and deference to
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`this choice is reflected in the movant’s burden to show good cause for the transfer. See id.
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`(internal quotation omitted). Thus, the balance of factors must clearly weigh in favor of transfer
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`to the new venue. Def. Distributed, 30 F.4th at 433. “When the transferee venue is not clearly
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`more convenient than the venue chosen by the Plaintiff, the Plaintiff’s choice should be
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`respected.” Id.
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`B.
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`A Party’s Joint Motion to Sever and Transfer
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`When a party seeks to both transfer and sever its claims, the Court’s inquiry is different
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`than traditional severance motions. See id. at 427. Both the Federal Circuit and the Fifth Circuit
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`direct courts to consider and weigh the “comparative inconvenience of splitting the suit versus
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`the advantages to be gained from partial transfer.” In re Amazon.com, Inc., 2022 WL 17688072, at
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`*2 (Fed. Cir. Dec. 15, 2022) (quoting Def. Distributed, 30 F.4th at 428); see also Def. Distributed,
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`30 F.4th at 429 (“[S]everance and transfer makes sense only where the administration of justice
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`-6-
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`Google Ex. 1012, p. 006
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`would be materially advanced and a defendant in one district is not so involved in the transferred
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`controversy that the same issues would have to be litigated twice.”) (internal quotation omitted).
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`III.
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`ANALYSIS
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`The Court begins by applying the traditional transfer analysis to determine the
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`advantages, if any, of transferring DDC’s claims against Google to the Northern District of
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`California. Because the Court finds the factors favor transfer, it next analyzes whether the
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`benefits of transfer outweigh any judicial inefficiencies resulting from severing Google’s claims.
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`See KY Home & Garden, LLC v. AMI Ventures, Inc., 2021 WL 8533033, at *2 (S.D. Tex. Sept.
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`30, 2021) (looking first to whether transfer of the claims against the moving defendants was
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`appropriate under 28 U.S.C. § 1404 and then considering judicial efficiency).
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`A.
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`Transfer of Venue
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`The Court finds that this case should be transferred pursuant to § 1404(a). In analyzing
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`transfer of venue, the Court applies Fifth Circuit law because the issue is not unique to patent.
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`See, e.g., In re Amazon.com, 2022 WL 17688072, at *2. To obtain transfer, Google must show
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`that (1) this suit could have properly been filed in the Northern District of California and (2) the
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`Northern District of California is “clearly more convenient” when considering the private- and
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`public-interest factors. See Def. Distributed, 30 F.4th at 433.
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`DDC concedes that this suit could have been properly filed in the District Court for the
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`Northern District of California if Google was the sole defendant, Doc. 95, Resp., 5, as Google is
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`headquartered in Mountain View, California, Doc. 94, Mot. Transfer, 8. The Court therefore
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`considers the private- and public-interest factors enumerated above and finds that Google has
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`shown good cause for transfer to the Northern District of California.
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`-7-
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`Google Ex. 1012, p. 007
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`1.
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`The Private-Interest Factors Weigh in Favor of Transfer
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`Three factors—relative access to sources of proof, availability of compulsory process, and
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`cost of attendance for willing witnesses—favor transfer. The remaining factor, which considers
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`practical problems and judicial economy, is neutral. Thus, the Court finds that, collectively, the
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`private-interest factors strongly support transfer.
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`i.
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`Relative ease of access to sources of proof
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`The first private-interest factor favors transfer. This factor considers the ease of access to
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`sources of documentary and other physical, non-witness evidence. See Volkswagen II, 545 F.3d at
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`316 (considering only documents and physical evidence); Netlist, Inc. v. SK Hynix Inc., 2021 WL
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`2954095, at *5 (W.D. Tex. Feb. 2, 2021) (noting the first factor does not include witnesses). The
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`movant must provide “an actual showing of the existence of relevant sources of proof, not merely
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`an expression that some sources likely exist in the prospective forum.” Def. Distributed, 30 F.4th
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`at 434. “In patent infringement cases, the bulk of the relevant evidence usually comes from the
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`accused infringer. Consequently, the place where the defendant’s documents are kept weighs in
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`favor of transfer to that location.” In re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir. 2020)
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`(analyzing transfer under Fifth Circuit law).
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`Here, Google has indicated that “documents in Google’s possession about its products
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`and services are normally created and maintained by the employees working on those products
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`and services.” Doc. 94-1, Ex. A, App. at 7. And the employees that worked on “the Google
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`Cardboard V2 Viewer, Google’s viewer guidelines for third parties, the WWGC [P]rogram, and
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`the development of Google Cardboard viewers are based primarily in the San Francisco Bay
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`Area,” with “no such employees . . . in Texas.” Id.; see also Doc. 94, Mot. Transfer, 3–4
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`-8-
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`Google Ex. 1012, p. 008
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`(providing a list of nine employees and details of their involvement with the Google products and
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`program). As such, Google claims “[a]ll technical, financial, and marketing documents related
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`to Google Cardboard and the WWGC Program are created and maintained in California.” Doc.
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`94, Mot. Transfer, 4.
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`DDC, by contrast, relies in part on the presence of potential witnesses, a consideration
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`beyond the scope of this factor. See Volkswagen II, 545 F.3d at 316. DDC also points to former
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`defendants Emerge, Structural Graphics, and Landsberg,3 which all have locations in this district,
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`as evidence that documents relevant to induced infringement are likely located here. See Doc.
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`95, Resp., 8–11. But DDC’s claims regarding the presence of evidence and documents are based
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`solely on the LinkedIn profiles of the entities’ purported employees. See id. For example, DDC
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`says that, because Emerge’s “Computer Programmer” and “Sales & Marketing Manager” work in
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`this district, relevant documents regarding the cardboard viewers must be here too. See id. at 9.
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`But the logical jump from the location of Emerge’s “Computer Programmer” to documents
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`relating to cardboard virtual reality viewers is significant and highly speculative. See Parus
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`Holdings, Inc. v. Microsoft Corp., 2022 WL 17420391, at *5 (W.D. Tex. Dec. 4, 2022) (noting
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`that the relevance of witnesses based on their LinkedIn profiles was “far too speculative” and
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`worth “little to no weight”); Doc. 95-1, Ex. 8, App. at 73 (showing Structural Graphics’ Dallas
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`office is one of six national sales offices). Accordingly, comparing access to evidence in this
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` 3 Although DDC is now suing OPS, the Court still considers the Landsberg witnesses identified in
`DDC’s response because most, if not all, of those witnesses presumably work for OPS instead of Landsberg.
`See Doc. 95, Resp., 13 (listing witnesses with LinkedIn profiles indicating they are located in Dallas and work
`for a Landsberg entity); see also Doc. 103, Mem. Op. & Order, 8–9 (“Landsberg has no physical presence or
`employees in Texas. Rather, a separate entity within the corporate family—[OPS]—is the reason for the office
`buildings and employees in Texas.”) (internal citation omitted).
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`-9-
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`Google Ex. 1012, p. 009
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`district with the Northern District of California, the Court finds this factor weighs in favor of
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`transfer.
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`ii.
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`Availability of compulsory process to secure the presence of witnesses
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`The Court finds the second private-interest factor weighs in favor of transfer. A subpoena
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`may command a person’s attendance at a trial, hearing, or deposition
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`(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 (i) is a party or a
`party’s officer; or (ii) is commanded to attend a trial and would not incur
`substantial expense.
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`Fed. R. Civ. P. 45(c)(1). As the party seeking transfer, Google “has the burden to establish that
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`[the District Court for the Northern District of California] has subpoena power over more
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`unwilling witnesses than this Court.” See R2 Sols. LLC v. Target Corp., 2021 WL 2550908, at *3
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`(E.D. Tex. June 22, 2021).
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`Google has identified several potential third-party witnesses. For example, Google points
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`to three former DODOcase employees—Patrick Buckley, Craig Dalton, and Gene Daly. Doc. 94,
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`Mot. Transfer, 13. Buckley is the named inventor on the Asserted Patents. Id. at 9. And Dalton
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`and Daly were involved in “pre-suit communications [with Google] . . . when both companies
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`were developing and selling their cardboard viewers.” Doc. 98, Reply, 7. Dalton and Daly were
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`also “named as inventors on the provisional application to which the [A]sserted [P]atents claim
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`priority.” Id. Google additionally highlights MerchSource, a company previously involved in
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`litigation with DODOcase and DDC that may be relevant to licensing or damages issues. Doc.
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`94, Mot. Transfer, 13. And finally, Google identifies Dontae Rayford, who was a former Google
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`employee named in the original complaint as the “business development manager” that accepted
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`-10-
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`Google Ex. 1012, p. 010
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`DODOcase’s cardboard viewer into the WWGC Program. Id.; see also Doc. 1, Orig. Compl., ¶¶
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`40, 46.
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`Buckley currently lives in Idaho—outside of both the transferor and transferee
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`forums—and has indicated he is willing to travel to testify if needed. See Doc. 95-1, Ex. B, App.
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`at 10–11. According to their LinkedIn profiles,4 Dalton and Daly live in the Northern District of
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`California, and Rayford lives in Los Angeles, California. See Doc. 94-1, Exs. 6, 8, 10, App. at 49,
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`67, 75. Similarly, MerchSource is located Irvine, California. Id., Ex. 11, App. at 88. Though
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`Google is unsure whether these witnesses are unwilling to testify, it argues that their location
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`favors transfer. Doc. 94, Mot. Transfer, 13.
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`Conversely, DDC points again to the employees of former defendants Emerge, Structural
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`Graphics, and Landsberg as presumably unwilling witnesses located in the Northern District of
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`Texas. Doc. 95, Resp., 14. But for similar reasons as discussed above, their relevance as witnesses,
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`based only on their company-affiliations and job titles, is highly speculative and worth little
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`weight. Whereas Google has identified third-party witnesses and explained their relevant
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`knowledge, DCC’s witnesses lack any direct connection to the cardboard viewers. Accordingly,
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`the Court declines to simply tally the witnesses and instead finds that, taking into consideration
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`the demonstrated relevance of the purported witnesses, this factor weighs in favor of transfer.
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`iii.
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`Cost of attendance for willing witnesses
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`The Court finds that the third private-interest factor also favors transfer. This factor
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`considers witness convenience and cost, which usually depend on the distance a witness must
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`4 The Court’s prior discussion on LinkedIn should not be taken as a categorical statement about the
`use of LinkedIn profiles as evidence. Rather, the Court sees a fundamental difference between using someone’s
`LinkedIn profile as evidence of the person’s probable location and using someone’s LinkedIn profile as
`evidence that, based on a generalized job title, the person likely has relevant knowledge to the case at hand.
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`-11-
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`Google Ex. 1012, p. 011
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`travel to the prospective forums. See Volkswagen II, 545 F.3d at 317. “When the distance
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`between an existing venue for trial of a matter and a proposed venue under § 1404(a) is more
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`than 100 miles, the factor of inconvenience to witnesses increases in direct relationship to the
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`additional distance to be traveled.” Id. Indeed, “[a]dditional distance means additional travel
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`time[,] . . . meal and lodging expenses[,] and . . . overnight stays.” In re Volkswagen AG, 371 F.3d
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`201, 205 (5th Cir. 2004).
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`“[T]he moving party must identify specific witnesses and outline the substance of their
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`testimony.” BNSF Ry. Co., 667 F. Supp. 2d at 711. This factor is often regarded as the most
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`important, though courts typically give greater weight to the convenience of non-party witnesses
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`than party witnesses. Ternium Int’l U.S.A. Corp. v. Consol. Sys., Inc., 2009 WL 464953, *4 (N.D.
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`Tex. Feb. 24, 2009) (Fish, J.).
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`Google has identified several willing witnesses for both itself and DDC that are located in
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`California. Doc. 94, Mot. Transfer, 9–10. First, Google points to nine relevant employees that
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`developed the cardboard viewers or worked on the WWGC Program. Id. at 9. Google also
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`highlights the potential DODOcase VR employees—Buckley, Dalton, and Daly—should they be
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`willing witnesses for DDC. Id. at 9–10. As discussed above, Buckley lives in Idaho, and Dalton
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`and Daly live in Northern District of California. See Doc. 94-1, Exs. 6, 8, 10, App. at 49, 67, 75.
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`In response, DDC argues that Google has simply “hand-picked several employees with
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`ties to California to create the illusion of inconvenience.” Doc. 95, Resp., 7. In particular, DDC
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`points to Google’s omission of Damien Henry from the list of potential witnesses. Id. at 15. Henry
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`lives in France and, according to DDC, played a role in developing the Google viewers. See id.
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`DDC also notes that it is located in Austin, Texas and again references the various employees
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`-12-
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`Google Ex. 1012, p. 012
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`from former defendants Emerge, Structural Graphics, and Landsberg that are purportedly located
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`in this district. Id. at 15–16.
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`The Court finds that this factor favors Google. The Northern District of California is a
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`more convenient forum for the non-party DODOcase employees than the Northern District of
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`Texas, as Daly and Dalton live there, and Buckley is closer by plane.5 Google’s party
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`witnesses—nine employees—are also located almost exclusively in California, with several
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`directly mentioned in DDC’s complaint. See Doc. 123, Am. Compl., ¶¶ 32–34 (discussing Alex
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`Kauffmann, Andrew Nartker, and Clay Bavor). And even if Henry is a relevant witness—a
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`notion Google contests—the burden of international travel from France to California or Texas is
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`comparable. Doc. 95, Resp., 15; see also In re Genentech, Inc., 566 F.3d 1338, 1344 (Fed. Cir.
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`2009) (noting that travel for European witnesses to California versus Texas was comparable and
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`collecting similar cases).
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` While the Court acknowledges that DDC is located in Austin, Texas, DDC itself only
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`acquired the Asserted Patents for purposes of litigation and is unlikely to have many substantive
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`witnesses. See Doc. 94, Mot. Transfer, 12. Moreover, the employees of the former defendants
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`DDC has identified are unlikely to be willing witnesses and, in any event, are speculative as to
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`both their location and relevance. Accordingly, the Court finds that this factor favors transfer.
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`iv.
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`Practical problems that make trial of a case easy, expeditious, and inexpensive
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`The Court finds that the fourth private-interest factor is neutral. “This factor
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`encompasses concerns rationally based on judicial economy.” Seagen Inc. v. Daiichi Sankyo Co.,
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`546 F. Supp. 3d 515, 532 (E.D. Tex. 2021). The Court “may properly consider any judicial
`
`5 Idaho is an hour closer by plane to the Northern District of California than the Northern District
`of Texas. Doc. 98-1, Exs. 1–2, App. at 4–9.
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`Google Ex. 1012, p. 013
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`

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`Case 3:22-cv-01263-B Document 139 Filed 03/14/23 Page 14 of 22 PageID 4141
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`economy benefits which would have been apparent at the time the suit was filed” but should not
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`consider benefits arising after the filing of the suit. In re EMC Corp., 501 F. App’x 973, 976 (Fed.
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`Cir. 2013) (citing Hoffman v. Blaski, 363 U.S. 335, 343 (1960)). Google emphasizes a prior
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`litigation that took place in the Northern District of California involving some of the Asserted
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`Patents. Specifically, DODOcase VR filed suit against MerchSource in the Northern District of
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`California, and DDC was later added as a plaintiff. See DODOcase VR, Inc. v. MerchSource, LLC,
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`No. 3:17-CV-07088 (N.D. Cal. filed Dec. 13, 2017). The lawsuit involved the asserted ‘075 and
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`‘184 patents, but the bulk of the litigation involved a temporary restraining order and preliminary
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`injunction. See Doc. 94-1, Ex. 17, App. at 120–31. The court thus did not reach more
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`substantive issues such as claim construction. See id. Nevertheless, the Northern District of
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`California has some familiarity with these patents and the issues at hand.
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`On the other hand, if the action stayed in this district, even if the claims against Google
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`were severed,6 efficiencies are gained because of the overlap in claims against OPS and Google
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`regarding the Google Cardboard V2 Viewer and Google’s induced infringement. See Doc. 123,
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`Am. Compl., ¶ 20. The claims involve the same Asserted Patents and similar issues.
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`On balance, therefore, the Court finds that the Northern District of California’s
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`familiarity with the Asserted Patents roughly matches any efficiencies gained by keeping the
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`claims against both parties in the Northern District of Texas.
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`2.
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`The Public-Interest Factors Are Neutral
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`Turning to the public-interest factors, the first factor—court congestion—weighs against
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`transfer, while the second factor—localized interests—favors transfer. The third and fourth
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`6 Any judicial efficiency concerns arising from the severance itself—as opposed to the
`transfer—are considered in the severance analysis. See infra Section B.
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`Google Ex. 1012, p. 014
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`

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`Case 3:22-cv-01263-B Document 139 Filed 03/14/23 Page 15 of 22 PageID 4142
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`factors, which consider the courts’ familiarity with governing law and avoidance of conflict of law
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`issues, are neutral. Accordingly, the Court finds that, as a whole, the public-interest factors are
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`neutral.
`
`i.
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`Administrative difficulties flowing from court congestion
`
`The Court finds that the first public-interest factor weighs against transfer. “This factor
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`takes into consideration the speed with which a case may be resolved in the plaintiff’s chosen
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`venue and in the proposed transferee venue.” BNSF Ry. Co., 667 F. Supp. 2d at 712 (citing In re
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`Genentech, Inc., 566 F.3d at 1347). Nevertheless, “this factor alone should not outweigh other
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`factors,” as it is the “most speculative.” Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., 867 F.
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`Supp. 2d 859, 871 (E.D. Tex. 2012) (citing In re Genentech, 566 F.3d at 1347).
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`DDC states this factor weighs against transfer because in the twelve-month period ending
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`on June 30, 2022, the Northern District of California had 9,837 case filings and 12,453 cases
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`pending with a time from filing to trial of 34.7 months. Doc. 95, Resp., 18; Doc. 95-1, Ex. 20,
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`App. at 140. DDC also notes in the same twelve-month period, the Northern District of Texas
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`had 7,386 case filings and 6,836 cases pending with a time from filing to trial of 25.1 months.
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`Doc. 95, Resp., 18; Doc. 95-1, Ex. 20, App. at 139. Google argues this factor is neutral because
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`patent cases in both forums have an equal rate of disposition over the past ten years. Doc. 94,
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`Mot. Transfer, 17. The Court finds that the twelve-month period is a better indicator of court
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`congestion and therefore concludes that this factor weighs against transfer.
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`ii.
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`Local interest in having localized interests decided at home
`
`The Court finds that the second public-interest factor favors transfer. This factor focuses
`
`on deciding localized interests at home and “most notably regards not merely the parties’
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`significant connections to each forum writ large, but rather the significant connections between a
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`Google Ex. 1012, p. 015
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`

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`Case 3:22-cv-01263-B Document 139 Filed 03/14/23 Page 16 of 22 PageID 4143
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`particular venue and the events that gave rise to a suit.” Def. Distributed, 30 F.4th at 434
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`(quoting In re Apple, 979 F.3d at 1345). “Important considerations include the location of the
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`injury, witnesses, and the plaintiff’s residence.” Id.
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`The Northern District of California’s interests in deciding this case are clear, as the suit
`
`largely arises out of events in Northern California. Specifically, the Google Cardboard viewers,
`
`along with the WWGC Program, were designed and operated in the Northern District of
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`California. See In re Apple, 979 F.3d at 1345 (finding significant the location where the “accused
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`products were designed, developed, and tested”). And the alleged injury primarily arose in
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`Northern California with DODOcase VR as the operating company and patent holder. That
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`DDC now resides in Austin, Texas and retains the patents solely for purposes of litigation is
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`therefore less compelling.
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`The Northern District of Texas has a limited interest. While some of the infringing
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`activity by the former defendants may have taken place in this district, those defendants have
`
`been dismissed. Thus, as to the case against Google, the connection to this district only exists
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`indirectly through the alleged infringing acts of now-dismissed third parties. Additionally, as
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`previously discussed, DDC’s evidence regarding the actual presence of the former defendants and
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`their witnesses here is somewhat speculative. Similarly, even if DDC has “taken affirmative steps
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`to acquire and sell products covered by the Asserted Patents in Texas and this Judicial District,”
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`Doc. 95, Resp., 19, the sale of products alone is not enough to negate transfer. See In re TOA
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`Techs., Inc., 543 F. App’x 1006, 1009 (Fed. Cir. 2013) (holding that the “sale of a product in the
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`plaintiff’s preferred forum” did “not negate the significant interest in trying this case in a venue in
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`which the accused product