Case: 21-171 Document: 15 Page: 1 Filed: 10/06/2021
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`NOTE: This order is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`In re: GOOGLE LLC,
`Petitioner
`______________________
`
`2021-171
`______________________
`
`On Petition for Writ of Mandamus to the United States
`District Court for the Western District of Texas in No. 6:20-
`cv-00453-ADA, Judge Alan D. Albright.
`______________________
`
`ON PETITION
`______________________
`
`Before LOURIE, BRYSON, and TARANTO, Circuit Judges.
`PER CURIAM.
`
`O R D E R
` Google LLC petitions this court for a writ of mandamus
`directing the United States District Court for the Western
`District of Texas to transfer this action to the United States
`District Court for the Northern District of California. We
`conclude that the district court’s refusal to transfer the
`case constituted a clear abuse of discretion. We therefore
`grant mandamus directing transfer.
`
`
`
`
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`Case: 21-171 Document: 15 Page: 2 Filed: 10/06/2021
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`IN RE: GOOGLE LLC
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`I
`Jenam Tech, LLC, filed a complaint in the Waco Divi-
`
`sion of the Western District of Texas charging Google, a
`Delaware corporation headquartered in Mountain View,
`California, with patent infringement. Jenam alleged that
`Google’s use of the Quick UDP Internet Connections
`(“QUIC”) protocol infringes eight patents relating to meth-
`ods, systems, and computer products for sharing infor-
`mation to detect an idle Transmission Control Protocol
`connection.
` Google moved to transfer the case to the Northern Dis-
`trict of California pursuant to 28 U.S.C. § 1404(a). Google
`noted that Jenam’s only registered place of business and
`its only employee, George Andrew Gordon, are located in
`the Eastern District of Texas. App. 362. Google further
`pointed out that a different company based in the Northern
`District of California, Oso-IP, LLC, appears to handle li-
`censing of Jenam’s patents to others. Id. Google noted that
`witnesses knowledgeable about the implementation and
`maintenance of the protocol and potential prior art reside
`in the Northern District of California. App. 362–64.
`Google also submitted a sworn declaration stating that
`the “vast majority of the research, design, development,
`and testing activities related to the QUIC protocol have oc-
`curred and continue to occur in Mountain View [California]
`or Cambridge [Massachusetts],” and “both the source code
`and technical documents related to Google’s QUIC protocol
`are created and maintained in Mountain View and Cam-
`bridge.” App. 379. Google stated it was unaware of any
`potential witnesses or sources of proof in the Western Dis-
`trict of Texas.
`
`Jenam responded that Google maintains an office in
`Austin, Texas, within the Western District of Texas. App.
`478. In addition, Jenam argued that the Western District
`of Texas would be a convenient venue for its own witnesses
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`Case: 21-171 Document: 15 Page: 3 Filed: 10/06/2021
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`IN RE: GOOGLE LLC
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`and sources of proof. In support of that assertion, Jenam
`submitted a declaration from the inventor, Robert Paul
`Morris, who stated that he would “most likely be unwilling
`to testify in-person at a deposition, hearing or a trial” ei-
`ther in the Western District of Texas or the Northern Dis-
`trict of California “during the COVID-19 pandemic.” App.
`500. If he were required to testify, he stated, “it would be
`safer and far more convenient . . . for me to drive than to
`fly,” and that he would prefer driving to Waco from his
`home in Georgia rather driving to California. Id. Jenam
`also noted that the Western District of Texas would be
`more convenient than the Northern District of California
`for the patent prosecution attorney, who lives in the North-
`ern District of Texas, and for Mr. Gordon, who lives in the
`Eastern District of Texas. App. 496.
` On July 8, 2021, the district court issued an order deny-
`ing Google’s transfer motion. At the outset, the court found
`that this action could have been brought in the Northern
`District of California. The court then analyzed Google’s
`transfer motion by applying the set of private-interest and
`public-interest factors that the Fifth Circuit has directed
`courts to use in making transfer decisions under section
`1404(a). See In re Volkswagen of Am., Inc., 545 F.3d 304
`(5th Cir. 2008) (en banc).
`The district court took note of the five factors that were
`disputed between the parties: (1) the relative ease of access
`to sources of proof; (2) the availability of compulsory pro-
`cess to secure the attendance of non-party witnesses whose
`attendance may need to be compelled by court order; (3) the
`relative convenience of the two forums for potential wit-
`nesses; (4) the administrative difficulties flowing from
`court congestion; and (5) the local interest in having dis-
`putes regarding activities occurring principally within a
`particular district decided by a court within that district.
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`IN RE: GOOGLE LLC
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`As for the sources of proof, the district court recognized
`
`that Google kept local copies of the documents in the North-
`ern District of California, App. 8–9, but found that it would
`not be difficult for Google to access those documents elec-
`tronically from Google’s offices within the Western District
`of Texas, App. 8. As for Jenam’s documents, the court
`found that it would be more convenient for Mr. Gordon to
`transfer any documents in his possession to the Western
`District of Texas than to the Northern District of Califor-
`nia. App. 9. On those grounds, the court concluded the
`sources-of-proof factor “weighs solidly against transfer.”
`Id.
` With respect to the availability of compulsory process,
`Google identified five third-party witnesses who were lo-
`cated in the Northern District of California and who could
`be compelled to testify by a court in that district but not by
`the court in the Western District of Texas. The district
`court, however, found that Google had failed to show that
`four of those witnesses would be unwilling to testify at trial
`in the Western District of Texas; the court therefore dis-
`counted those witnesses for purposes of the compulsory
`process factor. App. 10–11. Finding that only one potential
`third-party witness was “likely unwilling to testify in
`Texas” (but could be subpoenaed by a court in the Northern
`District of California) the district court concluded that the
`compulsory process factor weighed in favor of transfer, but
`only slightly so. App. 12 (internal quotation marks omit-
`ted).
`
`Addressing the convenience of potential witnesses, the
`court expressed the view that in patent cases generally, the
`court “assumes that no more than a few party witnesses—
`and even fewer third-party witnesses, if any—will testify
`live at trial” and therefore “long lists of potential party and
`third-party witnesses do not affect the Court’s analysis for
`this factor.” App. 13. Furthermore, the court expressed
`the view that the convenience of witnesses is not an
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`IN RE: GOOGLE LLC
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`important consideration in the case of party witnesses.
`App. 13. The court recognized that two Google employees
`who were potential witnesses resided in the Northern Dis-
`trict of California. App. 13. However, the court concluded
`that the inconvenience to those Google employees of trav-
`eling to Waco would be equivalent to the inconvenience to
`Mr. Gordon of traveling to California if the case were trans-
`ferred there. App. 14. The court therefore determined that
`the convenience-of-the-witnesses factor was neutral as to
`party witnesses. Id.
`As for non-party witnesses, the court recognized that
`Oso-IP’s principal and four former Google employees were
`potential witnesses and were located in the Northern Dis-
`trict of California. Id. However, the court found that, as
`“the sole inventor of the Asserted Patents, the importance
`of Mr. Morris’s testimony outweighs the testimony of
`Google’s former employees.” App. 15. The court observed
`that “[t]he additional travel, lodging, and related costs that
`Mr. Morris will incur with a 2,600-mile drive to the NDCA
`over a shorter, 900-mile trip to the WDTX amount to a sig-
`nificant difference of convenience.” App. 16. The court also
`noted that Waco would be more convenient for the patent
`prosecution attorney, who lives in the Northern District of
`Texas. The court therefore found that the convenience of
`non-party witnesses weighed against transfer.
`
`As to which district has the greater local interest in this
`dispute, the district court acknowledged that the Northern
`District of California had a local interest in resolving this
`case because the QUIC protocol was designed and devel-
`oped in that district. App. 18. However, the court found
`that the local interest factor was neutral with respect to
`Google because “both Districts are home to Google facili-
`ties, employees, and are significant markets for the alleg-
`edly infringing products.” Id. On the whole, the district
`court found that the local interest factor weighed against
`transfer on the ground that the Western District of Texas
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`IN RE: GOOGLE LLC
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`had an interest in adjudicating this case because Jenam is
`a Texas entity. Id.
`
`Finally, with respect to the court-congestion factor, the
`court noted that “[i]f this case is transferred to the [North-
`ern District of California], establishing a new schedule
`with a new presiding judge would cause greater delay.”
`App. 17. “Because transfer would only prolong this case,”
`the court explained, “this factor weighs against transfer.”
`Id. Taking into account the weight it assigned to each of
`the transfer factors, the district court concluded that
`Google had not established that the Northern District of
`California was clearly the more convenient venue for trial,
`and the court therefore denied Google’s transfer motion.
`App. 19.
`
`II
`Our review of transfer rulings is governed by the law
`of the regional circuit, which in this case is the Fifth Cir-
`cuit. See In re TS Tech USA Corp., 551 F.3d 1315, 1319
`(Fed. Cir. 2008). Under Fifth Circuit law, the governing
`principles are well settled. Section 1404(a) authorizes a
`court to transfer a civil action “[f]or the convenience of par-
`ties and witnesses, in the interest of justice[.]” Fifth Cir-
`cuit law provides that a motion to transfer should be
`granted if “the movant demonstrates that the transferee
`venue is clearly more convenient.” In re Radmax, Ltd., 720
`F.3d 285, 288 (5th Cir. 2013) (quoting Volkswagen, 545
`F.3d at 315) (internal quotation marks omitted).
`A district court enjoys broad discretion in making a
`transfer determination. See In re Vistaprint Ltd., 628 F.3d
`1342, 1344 (Fed. Cir. 2010). That deference, however, does
`not exempt transfer determinations from scrutiny on man-
`damus. See In re Samsung Elecs. Co., 2 F.4th 1371, 1379
`(Fed. Cir. 2021). When a court’s denial of a motion to trans-
`fer under section 1404(a) clearly contravenes governing le-
`gal standards, we have issued mandamus to overturn the
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`IN RE: GOOGLE LLC
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`denial of transfer. See, e.g., In re Apple Inc., 979 F.3d 1332
`(Fed. Cir. 2020).
`Google argues that the transfer analysis here contra-
`venes governing law in four respects. First, the court found
`that the convenience-of-the-witnesses factor weighed
`against transfer, even though several witnesses are located
`in the Northern District of California and none are located
`in the Western District of Texas. Second, the court found
`that the local interest factor weighed against transfer even
`though the events giving rise to this suit occurred in the
`Northern District of California and not in the Western Dis-
`trict of Texas. Third, the court concluded that the court
`congestion factor weighed against transfer, even though
`the court did not find that the transferee venue was more
`congested. Fourth, the court weighed the sources-of-proof
`factor against transfer despite the fact that there are
`sources of proof in Northern California and no such sources
`of proof in the Western District of Texas. In light of those
`errors, Google contends, the court’s refusal to grant trans-
`fer here amounts to a clear abuse of discretion.
`A
`Google’s primary argument is that the convenience of
`willing witnesses must be regarded as weighing heavily in
`favor of transfer because there are several potential wit-
`nesses in the Northern District of California and none in
`the Western District of Texas. We agree with Google.
`In holding that the Western District of Texas is more
`convenient for willing witnesses, the district court recog-
`nized that it is “obviously more convenient for witnesses to
`testify closer to home,” App. 13 (internal quotation marks
`and citation omitted), but it qualified that observation in
`two respects. First, the court stated that the convenience-
`of-the-witnesses factor relates primarily to the convenience
`of willing non-party witnesses, not party witnesses. Id.
`Second, the court took the position that Mr. Morris’s testi-
`mony as the inventor was more important than that of the
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`IN RE: GOOGLE LLC
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`four former Google employees located in the Northern Dis-
`trict of California and therefore that more weight should
`be given to the relative inconvenience associated with Mr.
`Morris’s travel from Georgia. We disagree with the district
`court on both points.
`First, we have held that the fact that a witness is affil-
`iated with a party “does not negate the inconvenience and
`cost to those individuals to travel a significant distance to
`testify.” In re Google LLC, No. 2021-170, 2021 WL
`4427899, at *4 (Fed. Cir. Sept. 27, 2021); see also Samsung,
`2 F.4th at 1379 (holding that a district court’s sec-
`tion 1404(a) analysis “must consider” the convenience of
`“possible party witnesses”); In re Hulu, LLC, No. 2021-142,
`2021 WL 3278194, at *5 (Fed. Cir. Aug. 2, 2021) (same); In
`re Apple Inc., 818 F. App’x 1001, 1003 (Fed. Cir. 2020) (re-
`jecting the view that the convenience of party witnesses is
`given “little weight”). We have likewise rejected the cate-
`gorical assumption that defendants are likely to call few if
`any of the proposed party witnesses that are identified for
`purposes of supporting transfer motions. In re Juniper
`Networks, Inc., No. 2021-160, __ F.4th __, 2021 WL
`4343309, at *4 (Fed. Cir. Sept. 24, 2021).
`Google identified two of its employees and three former
`employees who reside in the Northern District of California
`and are likely to testify given their work on the accused
`protocols, as well as a principal of Oso-IP, who was involved
`in the prosecution and licensing of the asserted patents.
`By contrast, Jenam identified as witnesses only its one em-
`ployee and the prosecuting attorney.
`The district court concluded that the inconvenience to
`the party witnesses effectively cancels out under these cir-
`cumstances. But that conclusion is not supported by the
`record. Mr. Gordon is Jenam’s only identified party wit-
`ness who would be more inconvenienced by having to travel
`to California instead of Waco to testify, and even Mr. Gor-
`don does not live in the Western District of Texas and
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`IN RE: GOOGLE LLC
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`would have close to a two-hour drive to travel from his
`home in Frisco, Texas, to the courthouse in Waco. App.
`496. Thus, the district court failed to give sufficient weight
`to the relative convenience of the transferee forum for the
`party-affiliated witnesses. See Samsung, 2 F.4th at 1379.
`The second ground for the district court’s ruling on the
`willing witness factor was its view as to the importance of
`Mr. Morris’s testimony as the inventor of the asserted pa-
`tents and the relative inconvenience to him of having to
`travel to California rather than to Waco. However, the
`court’s ruling cannot be squared with our decision in Apple,
`979 F.3d 1332. There, we concluded that the district court
`erred in giving more weight to the fact that the inventors
`and the patent prosecutor residing in New York would need
`to travel a greater distance to reach the Northern District
`of California than to reach Waco, Texas, given that transfer
`would allow several witnesses to testify without having to
`leave home. Id. at 1342. We reasoned that the inventors
`in that case “will likely have to leave home for an extended
`period” whether or not the case was transferred, and thus
`would “only be slightly more inconvenienced by having to
`travel to California than to Texas.” Id. (internal quotation
`marks and citation omitted).
`The facts in that case are comparable to the facts in
`this one. Although the district court emphasized that Mr.
`Morris would have not have to travel as far from his home
`in Georgia to reach Waco than to reach the Northern Dis-
`trict of California, the difference in distance is not as im-
`portant as the difference in travel time and the fact that
`the witness would be required to be away from home for
`several days in any event. See Google, 2021 WL 4427899,
`at *4 (explaining that “time is [often] a more important
`metric than distance”). There is no major airport in the
`Waco Division of the Western District of Texas; conse-
`quently, the total travel time from Atlanta, Georgia, to
`Waco would be only marginally less than the travel time
`from Atlanta to San Francisco.
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`IN RE: GOOGLE LLC
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`Jenam argues that Mr. Morris would likely be unwill-
`ing to attend a trial if he were required to drive the extra
`distance to California. In fact, however, Mr. Morris said he
`would probably be unwilling to testify in-person at all dur-
`ing the COVID-19 pandemic, and he expressed a prefer-
`ence for being allowed to testify remotely. App. 500.
`Moreover, while Mr. Morris stated that if he were required
`to attend the trial, he would prefer to drive rather than to
`fly, his preference for driving was based on the COVID-19
`pandemic. Given that the trial is not likely to be held until
`2022 or 2023, it seems quite likely that conditions will have
`changed sufficiently by the time of the trial that Mr. Morris
`will no longer be faced with the prospect of having to drive
`to the site of the trial, whether it is held in Waco or the
`Northern District of California.
`In other similar cases, this court has held that a district
`court abused its discretion in weighing the convenience of
`the willing witnesses when there are several witnesses lo-
`cated in the transferee forum and none in the transferor
`forum. See In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed.
`Cir. 2009) (holding that where “a substantial number of
`material witnesses reside within the transferee venue . . .
`and no witnesses reside within the” transferor venue, a dis-
`trict court “clearly err[s] in not determining” the conven-
`ience of willing witnesses “to weigh substantially in favor
`of transfer”); see also Apple, 979 F.3d at 1342; Google, 2021
`WL 4427899, at *4; In re TracFone Wireless, Inc., 852 F.
`App’x 537, 540 (Fed. Cir. 2021). Under these circum-
`stances, we agree with Google that this factor weighs
`strongly in favor of transfer.
`B
`The second contested factor—having local interests ad-
`judicated locally—also strongly favors transfer. It is undis-
`puted that events that form the basis for Jenam’s
`infringement claims against Google occurred in the North-
`ern District of California where Google developed the
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`Case: 21-171 Document: 15 Page: 11 Filed: 10/06/2021
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`IN RE: GOOGLE LLC
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`accused protocol at its headquarters. While some develop-
`ment activities took place in Massachusetts, that does not
`make the transferee venue less favorable, given that none
`of the underlying events occurred in the Western District
`of Texas. See Samsung, 2 F.4th at 1380 (transfer favored
`because most, even if not all, of the underlying research,
`design, and development of the accused products centered
`on activity within the transferee venue); see also Juniper,
`2021 WL 4343309, at *4.
`The district court weighed against transfer the fact
`that “both Districts are home to Google facilities, employ-
`ees, and are significant markets for the allegedly infringing
`products.” App. 18. The problem with the court’s analysis
`is that it relies on Google’s general presence in the judicial
`forum, not on the locus of the events that gave rise to the
`dispute.
`The fact that a party may have a general presence in a
`particular district does not give that district a special in-
`terest in the case. See Juniper, 2021 WL 4343309, at *5
`(“Juniper’s general presence in the Western District of
`Texas is not enough to establish a local interest in that dis-
`trict comparable to that of the Northern District of Califor-
`nia.”); In re Google LLC, No. 21-144, 2021 WL 3378938, at
`*1 (Fed. Cir. Aug. 4, 2021); In re DISH Network L.L.C., 856
`F. App’x 310 (Fed. Cir. 2021). Instead, what is required is
`that there be “‛significant connections between a particular
`venue and the events that gave rise to a suit.’” Apple, 979
`F.3d at 1345 (noting that this factor “most notably regards
`. . . the ‘significant connections between a particular
`venue’” (quoting In re Acer Am. Corp., 626 F.3d 1252, 1256
`(Fed. Cir. 2010)) (emphasis in Apple)). In addition, Jenam’s
`reference to the sale in the Western District of Texas of
`Google products that used the accused protocol does not
`give that district a substantial interest in the dispute. See
`In re Hoffmann-La Roche Inc., 587 F.3d 1333, 1338 (Fed.
`Cir. 2009) (“[T]he sale of an accused product offered
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`IN RE: GOOGLE LLC
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`nationwide does not give rise to a substantial interest in
`any single venue.”); TS Tech, 551 F.3d at 1321.
`The district court also weighed against transfer the
`fact that Jenam is incorporated in Texas. But Jenam’s only
`connection to Texas is an office and a single employee, nei-
`ther of which is located in the Western District. Under the
`circumstances, Jenam’s status as a Texas entity is insuffi-
`cient to give the Western District of Texas a local interest
`in the dispute that is comparable to that of the Northern
`District of California.
`
`C
`The court congestion factor also does not support keep-
`ing this case in the Western District of Texas. The court’s
`contrary conclusion was not premised on a difference in
`docket congestion between the forums, see Juniper, 2021
`WL 4343309, at *6. Instead, the court based its finding as
`to the court congestion factor on its view that if the case
`were transferred to the Northern District of California, “es-
`tablishing a new schedule with a new presiding judge
`would cause greater delay.” App. 17. We reject that ra-
`tionale for denying transfer of venue here.
`Although the Fifth Circuit in Peteet v. Dow Chemical
`Co., recognized that granting the motion to transfer in that
`case “would have caused yet another delay in this pro-
`tracted litigation,” the court added an important qualifier:
`“Dow’s motion to transfer venue was not filed until eight-
`een months after the case was remanded to the Eastern
`District of Texas.” 868 F.2d 1428, 1436 (5th Cir. 1989).
`Since Peteet, the Fifth Circuit has reiterated that the delay
`associated with transfer may be relevant only “in rare and
`special circumstances,” In re Horseshoe Ent., 337 F.3d 429,
`434 (5th Cir. 2003) (finding error where the district court
`gave weight to the factor of possibility of delay or prejudice
`if transfer is granted), and, most recently, clarified that
`“garden-variety delay associated with transfer is not to be
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`IN RE: GOOGLE LLC
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`taken into consideration when ruling on a § 1404(a) motion
`to transfer,” Radmax, 720 F.3d at 289.
`In light of that precedent, the district court erred in
`weighing the court congestion factor against transfer. This
`case is not one in which a movant seeking a transfer of
`venue has failed to act with reasonable promptness.
`Google filed its transfer motion within two months of the
`filing of the initial complaint and within days of the filing
`of the amended complaint. Nor did the district court point
`to other special or unique circumstances that would war-
`rant departing from the general rule that the ordinary de-
`lay resulting from transfer is not entitled to weight. The
`district court in essence weighed against transfer that the
`Northern California court would be unlikely to adopt the
`same aggressive schedule as previously ordered in this
`case. But we have repeatedly held that it is improper to
`assess the court congestion factor based on the fact that the
`Western District of Texas has employed an aggressive
`scheduling order for setting a trial date. Juniper, 2021 WL
`4343309, at *6; Samsung, 2 F.4th at 1380–81; Apple, 979
`F.3d at 1344; In re Adobe Inc., 823 F. App’x 929, 932 (Fed.
`Cir. 2020).
`
`D
`The fourth disputed factor, relating to the sources of
`proof, also does not favor the Western District of Texas as
`the more convenient forum. Although the sources-of-proof
`factor focuses on “the relative access to sources of evidence
`in the two competing forums,” Juniper, 2021 WL 4343309,
`at *6, the district court here identified no sources of proof
`within the Western District of Texas. The only sources of
`proof that the court identified as being anywhere in Texas
`were in the possession of Mr. Gordon, who resides in the
`Eastern District of Texas. Even putting aside the fact that
`those sources of proof are outside the forum, the district
`court here recognized that the bulk of the evidence would
`likely be coming from the accused infringer.
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`IN RE: GOOGLE LLC
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`Moreover, and more importantly, the district court pro-
`vided no sound basis to disregard the Northern District of
`California as a convenient forum with respect to the
`sources of proof. Read fairly, Google’s declaration makes
`clear that source code and technical documents relating to
`the accused activities, as well as a significant number of
`documents relating to Google’s marketing, finances, and
`sales, were created and are maintained in the Northern
`District of California. Although the declaration stated that
`some evidence would also be located in Massachusetts, we
`have held that the fact that some evidence is stored in
`places outside both forums does not weigh against trans-
`fer. See In re Toyota Motor Corp., 747 F.3d 1338, 1340
`(Fed. Cir. 2014) (“The comparison between the transferor
`and transferee forum is not altered by the presence of other
`witnesses and documents in places outside both forums.”).
`While the district court found that these sources of
`proof would not be difficult to access electronically from
`Google’s offices in the Western District of Texas, that does
`not support weighing this factor against transfer. The
`Fifth Circuit has explained that while electronic storage of
`documents makes them more widely accessible than was
`true in the past, the fact that documents can often be ac-
`cessed remotely does not render the sources-of-proof factor
`irrelevant. See Volkswagen, 545 F.3d at 316 (“That access
`to some sources of proof presents a lesser inconvenience
`now than it might have absent recent developments does
`not render this factor superfluous.”). We therefore see no
`sound basis for the district court having weighed the
`sources-of-proof factor against transfer; if anything, that
`factor weighs in favor of transfer.*
`
`
`* The district court found that the fifth factor the par-
`ties disputed—the availability of compulsory process—fa-
`vored transfer, although only slightly. The district court’s
`ruling on that factor, however, was affected by its
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`IN RE: GOOGLE LLC
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`E
`In sum, the center of gravity of this action is clearly in
`the transferee district, and decidedly not in the Western
`District of Texas. Several of the most important factors
`bearing on the transfer decision strongly favor transfer,
`and no factor favors retaining the case in the Western Dis-
`trict of Texas. In fact, there is nothing at all that ties this
`case to the Western District of Texas: no witnesses reside
`there; no evidence is present there; and none of the conduct
`giving rise to this action took place there. The only connec-
`tion that the district court identified between this case and
`the Western District of Texas is that Google has a general
`presence in the district. As we have previously noted, the
`court’s reliance on that circumstance to justify denying
`transfer “improperly conflate[d] the requirements for es-
`tablishing venue under 28 U.S.C. § 1400(b) and the re-
`quirements for establishing transfer under § 1404(a).”
`Apple, 979 F.3d at 1346. We therefore grant Google’s peti-
`tion seeking transfer of the case to the Northern District of
`California.
`
`
`conclusion that any witness who was not shown to be un-
`willing to testify in the Western District of Texas should be
`assumed to be a willing witness. App. 10–11. We have
`held, however, that where the movant has identified mul-
`tiple third-party witnesses “and shown that they are over-
`whelmingly located within the subpoena power of only the
`transferee venue, this factor favors transfer even without
`a showing of unwillingness for each witness.” Hulu, 2021
`WL 3278194, at *4; In re HP Inc., No. 18-149, 2018 WL
`4692486, at 3 n.1 (Fed. Cir. Sept. 25, 2018) (“[W]hen there
`is no indication that a non-party witness is willing, the wit-
`ness is presumed to be unwilling and considered under the
`compulsory process factor.”). The court therefore should
`have found that factor to favor transfer more than “only
`slightly.” App. 12.
`
`

`

`Case: 21-171 Document: 15 Page: 16 Filed: 10/06/2021
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`16
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`IN RE: GOOGLE LLC
`
`Accordingly,
`
`IT IS ORDERED THAT:
`
`The petition is granted. The district court’s order deny-
`
`ing Google’s motion to transfer is vacated, and the district
`court is directed to grant the transfer motion.
`FOR THE COURT
`
`
`
`October 06, 2021
`/s/ Peter R. Marksteiner
`Date
`Peter R. Marksteiner
`Clerk of Court
`
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`s25
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`cc: United States District Court for the Western District of
`Texas
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`