Google Inc. v. Rockstar Consortium US LP et al

Filing 57

NOTICE of Filings of Responses to Motions to Stary Or, In the Alternative, To Transfer to the Northern District of California by MobileStar Technologies LLC, Rockstar Consortium US LP. (Attachments: # 1 Exhibit A - Rockstar Response to Samsung Motion to Transfer, # 2 Exhibit B - Rockstar Response to ASUSTek Motion to Transfer, # 3 Exhibit C - Rockstar Response to HTC Motion to Transfer, # 4 Exhibit D - Rockstar Response to LG Motion to Transfer, # 5 Exhibit E - Rockstar Response to ZTE Motion to Transfer)(Budwin, Joshua) (Filed on 4/17/2014) Modified on 4/18/2014 (kcS, COURT STAFF).

Exhibit B

Case 2:13-cv-00894-JRG Document 67 Filed 04/14/14 Page 1 of 23 PageID #: 1363

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
ROCKSTAR CONSORTIUM US LP, and
MOBILESTAR TECHNOLOGIES LLC,

PLAINTIFFS,
v.
ASUSTEK COMPUTER, INC. and
ASUS COMPUTER INTERNATIONAL,
INC.,

§
§
§
§
§
§ Civil Action No. 2:13-cv-00894-JRG
§
§
§ JURY TRIAL REQUESTED
§
§

DEFENDANTS.
PLAINTIFFS ROCKSTAR CONSORTIUM US LP AND MOBILESTAR
TECHNOLOGIES LLC’S RESPONSE TO ASUS’ MOTION TO TRANSFER
OR, IN THE ALTERNATIVE, TO STAY (DKT. 41)

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TABLE OF CONTENTS
I.

INTRODUCTION ...............................................................................................................1

II.

LEGAL STANDARD..........................................................................................................1

III.

STATEMENT OF FACTS ..................................................................................................1
A. Nortel, Rockstar, and Mobilestar’s Longstanding Ties to the
EDTX .......................................................................................................................1
B. Rockstar Files this Action, Google Forum Shops to the NDCA ....................................3

IV.

ASUS’ MOTION FOR TRANSFER SHOULD BE DENIED............................................4
A.

Rockstar’s Meaningful, Longstanding Connections to the
EDTX .......................................................................................................................4

B. Each Of The Private-Interest Factors Weigh Heavily Against
Transfer ....................................................................................................................5
1. Both Rockstar’s and Third Parties’ Sources of Proof
Favors Transfer ............................................................................................5
2. The Cost of Attendance for Willing Witnesses Favors
Plaintiffs .......................................................................................................6
3.

The Availability of Compulsory Process Favors
Plaintiffs .......................................................................................................7

4. The Judicial Economy Factor Favors Plaintiffs ................................................10
C. The Public Interest Factors Slightly Favor Venue in the EDTX..................................11
D. The Purportedly “Similar” Cases Relied on by Asus Differ
from this Case ........................................................................................................12
V.

DEFENDANTS’ REQUEST FOR A STAY SHOULD BE
DENIED. ............................................................................................................................12
A. This Action is Not a Manufacturer-Customer Suit ......................................................12
B. The NDCA Action Would Not Resolve the “Major Issues” in
This Case................................................................................................................14
C.

The Customer-Suit Exception Does Not Apply Because
Google—the Purported “Manufacturer”—Is A Party to the
First Filed Action ...................................................................................................15
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D. The NDCA Lacks Personal Jurisdiction Over Rockstar and
MobileStar..............................................................................................................15
VI.

CONCLUSION ..................................................................................................................15

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TABLE OF AUTHORITIES
Page(s)
CASES
Adrain v. Genetec Inc.,
2009 U.S. Dist. LEXIS 86855 (E.D. Tex. Sept. 22, 2009) ......................................................11
Blue Spike, LLC v. Texas Instruments, Inc.,
No. 12-558, Dkt. 16 at 5 (E.D. Tex. Mar. 13, 2014)................................................................12
Bright Response LLC v. SAS Institute, Inc.,
No. 2:12-cv-280-JRG, Dkt. 28 at 5-8 (E.D. Tex. March 26, 2013) ...........................................6
Continental Grain Co. v. Barge FBL-585,
364 U.S. 19 (1960) ...................................................................................................................11
Core Wireless Licensing, S.A.R.L. v. Apple, Inc.,
2013 U.S. Dist. LEXIS (E. D. Tex. Feb. 22, 2013) ...................................................................8
Ctr. One v. Vonage Holdings Corp.,
2009 U.S. Dist. LEXIS 69683 (E.D. Tex. Aug. 10, 2009) ......................................................11
Drew Techs., Inc. v. Robert Bosch, LLC,
2012 U.S. Dist. LEXIS 11489 (E.D. Mich. Jan. 31, 2012)......................................................15
E-Contact Techs LLC v. Acer Am. Corp.,
No. 1:12-cv-00352-RC (E.D. Tex. 2012) ..................................................................................6
Eolas Techs., Inc. v. Adobe Sys., Inc.,
2010 U.S. Dist. LEXIS 104125 (E.D. Tex. Sept. 28, 2010) ......................................................5
Gellyfish Tech. of Texas, LLC v. Asus Computer Int’l,
2:10-cv-0034-TJW (E.D. Tex. 2010).........................................................................................6
Geotag, Inc. v. Aromatique, Inc.,
2013 U.S. Dist. LEXIS 173481 (E.D. Tex. Jan. 14, 2013) ......................................................10
Ho Keung TSE v. Google, Inc.,
2012 U.S. Dist. LEXIS 176509 (E.D. Tex. Dec. 13, 2012) .....................................................11
In re Acer Am. Corp.,
626 F.3d 1252 (Fed. Cir. 2010)................................................................................................10
In re Apple Inc.,
456 F. App’x 907 (Fed. Cir. 2012) ..........................................................................................11

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In re Hoffman-La Roche,
587 F.3d 1333 (Fed. Cir. 2009)................................................................................................12
In re Microsoft Corp.,
630 F.3d 1361 (Fed. Cir. 2011)..................................................................................................4
In re Toyota Motor Corp.,
No. 2014-113, slip op. (Fed. Cir. April 3, 2014) ...................................................................4, 8
In re Volkswagen of Am., Inc.,
566 F.3d 1349 (Fed. Cir. 2009)................................................................................................11
In re Zimmer Holdings, Inc.,
609 F.3d 1378 (Fed. Cir. 2010)..............................................................................................4, 5
InMotion Imagery Techs., LLC v. Imation Corp.,
2013 U.S. Dist. LEXIS 41830 (E.D. Tex. Mar. 26, 2013) (Gilstrap, J.) ...............................6, 5
Internet Machs. LLC v. Alienware Corp.,
2011 U.S. Dist. LEXIS 66207 (E.D. Tex. Jun. 7, 2011)............................................................8
Kahn v. Gen. Motors Corp.,
889 F.2d 1078 (Fed. Cir. 1989)................................................................................................14
Lodsys v. Brother Int’l Corp.,
2013 U.S. Dist. LEXIS 51336 (E.D. Tex. Jan. 14, 2013) ........................................................14
Microsoft Corp. v. Commonwealth Sci. & Indus. Res. Org.,
2007 U.S. Dist. LEXIS 91550 (E.D. Tex. Dec. 13, 2007) .......................................................13
PersonalWeb Techs., LLC v. NEC Corp.,
No. 6:11-cv-655, Dkt. 74 at 16 (E.D. Tex. Mar. 21, 2013) .......................................................9
Pragmatus Telecom, LLC v. Neiman Marcus Group, Inc.,
2012 U.S. Dist. LEXIS 189149 (E.D. Tex. Nov. 20, 2012) ....................................................14
Regents of Univ. of Cal. v. Eli Lilly & Co.,
119 F.3d 1559 (Fed. Cir. 1997)................................................................................................11
RPost Holdings, Inc. v. StrongMail Sys.,
2013 U.S. Dist. LEXIS 116894 (E.D. Tex. Aug. 19, 2013) ..................................................5, 9
Secure Axcess, LLC v. Nintendo of Am., Inc.,
2014 U.S. Dist. LEXIS30115 (E.D. Tex. Mar. 7, 2014) (Gilstrap, J.) ..............................14, 15
Solid State Solutions, Inc. v. Stec, Inc.,
2:11-cv-391-JRG-RSP, at 115:3-6 (E.D. Tex. Jan. 18, 2013) ...................................................9

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Spread Spectrum Screening LLC v. Eastman Kodak,
657 F.3d 1349 (Fed. Cir. 2011)..........................................................................................13, 14
Tex. Data Co., LLC v. Target Brands, Inc.,
771 F. Supp. 2d 630 (E.D. Tex. 2011) .......................................................................................8
Thomas Swan & Co. v. Finisar Corp.,
2014 U.S. Dist. LEXIS 773 (E.D. Tex. Jan. 6, 2014) (Gilstrap, J.) ...........................4, 7, 10, 12
Touchscreen Gestures v. HTC,
No. 12-0261, Dkt. 17 at 1, 6, 9 (E.D. Tex. Mar. 27, 2013)......................................................12
Traffic Info., LLC v. ASUS Computer Int’l,
No. 2:11-cv-00457-MHS (E.D. Tex. 2011) ...............................................................................6
U.S. Ethernet Innovations, LLC v. Samsung Elecs. Co.,
2013 U.S. Dist. LEXIS 47384 (E.D. Tex. Apr. 2, 2013) ...........................................................6
Uniloc USA, Inc. v. Microsoft Corp.,
632 F.3d 1292 (Fed. Cir. 2011)................................................................................................15
Virtualagility, Inc. v. Salesforce.com, Inc.,
2014 U.S. Dist. LEXIS 12015 (E.D. Tex. Jan. 31, 2014) (Gilstrap, J.) ........................... passim
Wi-Lan Inc. v. HTC Corp.,
2013 U.S. Dist. LEXIS 99635 (E.D. Tex. July 17, 2013) (Gilstrap, J.) ....................................8

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I.

INTRODUCTION
Defendants ASUSTeK Computer, Inc. and Asus Computer International (collectively

“Asus”) attempt to rely on prejudicial allegations that Plaintiffs Rockstar Consortium US LP
(“Rockstar”) and MobileStar Technologies LLC are “litigation entities” playing “shell games”
for the purpose of “manipulating venue.” Dkt. 41 at 1. Derogatory characterizations aside,
Rockstar is a patent licensing business—and has always been forthright about its business. Asus’
Motion to Transfer or Stay (the “Motion”) ignores Rockstar’s deep ties to the Eastern District of
Texas (“EDTX”), instead misleadingly focusing on the Canadian location of a different entity,
Rockstar Consortium Inc. Moreover, this is not a manufacturer/customer suit. One of the patentsin-suit is a hardware patent with no relation to Google or the Android system. And the other six
patents-in-suit read on the combination of Asus’ hardware and the Asus modifications to the
Android operating system. For these reasons and those discussed below, this is not a
manufacturer/customer suit and the EDTX is the most convenient venue.
II.

LEGAL STANDARD
This Court is well acquainted with the legal standards governing the transfer analysis, as

discussed in Virtualagility, Inc. v. Salesforce.com, Inc., 2014 U.S. Dist. LEXIS 12015, at *4-6
(E.D. Tex. Jan. 31, 2014) (Gilstrap, J.).
III.

STATEMENT OF FACTS
A.

Nortel, Rockstar, and Mobilestar’s Longstanding Ties to the EDTX

Nortel, Rockstar, and the Patents-in-Suit. Plaintiffs are the assignees of intellectual
property that resulted from research and development performed by Nortel. For twenty years,
Nortel’s U.S. headquarters was in Richardson, Texas and Nortel’s licensing activities were
conducted out of Richardson. Powers Dec. ¶ 8. When Nortel confronted bankruptcy in 2011, it
held an auction for its patents. Google made an initial $900 million bid. Hearn Dec. ¶ 7. Google
ultimately lost the auction to Rockstar Bidco LP, which paid $4.5 billion. Id.
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Rockstar 1 owns two of the patents-in-suit and previously owned the other five patents-insuit, before assigning them to MobileStar. Powers Dec. ¶ 5. Rockstar is MobileStar’s parent
entity and maintains its principal place of business in Plano, Texas. Id. ¶ 7; Ex. 1. MobileStar
owns five of the patents-in-suit and is the exclusive licensee (from Rockstar) of the other patents.
Powers Dec. ¶ 5. MobileStar maintains its place of business at the same Plano address. Ex. 2.
Rockstar and MobileStar’s Roots in the EDTX. When Rockstar Bidco LP acquired the
patents-in-suit from Nortel in 2011, the Rockstar entities also acquired many former Nortel
employees responsible for licensing and prosecuting the Nortel patents. Powers Dec. ¶ 19.
Rockstar leased Nortel’s Richardson office space where many of Nortel’s patent files were
already located, including files relevant to the patents-in-suit. Id. ¶¶ 20 29. In August 2012, after
Nortel sold its Richardson campus during its bankruptcy proceedings, Rockstar signed a sevenyear lease for its current offices in nearby Plano, within the EDTX. Id. ¶ 20. Rockstar’s Plano
office is the company’s only U.S. office, although some employees also work out of their homes.
Id. ¶ 22-23. The office contains 8,125 square feet, with 10 assigned offices, 2 guest offices, 4
conference rooms, 7 work areas, and storage space. Id. ¶ 21. Rockstar has 15 full-time employees
in the U.S., including five full-time employees in Plano and others who spend significant time
there. Id. ¶ 22. No employees live or work in California. Id. ¶ 25. Eight of the U.S.-based
employees likely have relevant information about the patents-in-suit; three of them work fulltime out of the Plano office, one lives in Pennsylvania, one lives in Colorado, one lives in
Massachusetts, one lives in North Carolina, and one lives in Florida. 2 Id. ¶ 26.

1

The equity owners of Rockstar include: Apple, BlackBerry, Ericsson, Microsoft, and Sony. Powers Dec. ¶ 10.
Ericsson’s U.S. headquarters are located within the EDTX; BlackBerry is in the Dallas-area, within just miles of the
EDTX; Microsoft is in Seattle; Apple is in the NDCA; and Sony is in New Jersey. Id. ¶¶ 11–14; Exs. 7-10.
2

Additionally, two Rockstar board members live and work in EDTX or nearby. Kasim Alfalahi, a Rockstar Board
member and Chief IP officer at Ericsson, works in the EDTX, across the street from Rockstar’s Plano office. Powers
Dec. ¶ 27. Randy Mishler, another Rockstar Board member and Senior Director of IP Licensing at BlackBerry,
works in nearby Irving, Texas. Id. ¶ 28. Mr. Mishler is also a former Nortel patent attorney. Id.

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ASUS misleadingly focuses on the Canadian office, employees, and licensing letters of
Rockstar Consortium Inc.—the wrong entity. See Dkt. 41 at 4-5. Rockstar Consortium Inc.,
which is not a party to this litigation, is a different (although affiliated) entity from Rockstar
Consortium US LP. Powers Dec. ¶ 6. Rockstar Consortium Inc. is a British Columbia
corporation. Id. Rockstar is a Delaware limited partnership. Id. ¶ 6. When Rockstar acquired
Nortel’s patent portfolio in 2011, in many ways Rockstar simply continued the work of Nortel’s
well-established patent licensing division. See id. ¶ 19. Similarly, in many ways Rockstar
Consortium Inc. stepped into the shoes of Nortel’s Canada division. See id. Accordingly,
Rockstar and Rockstar Consortium Inc. have entered into a services agreement for Rockstar
Consortium Inc. to provide various support services to Rockstar. Id. ¶ 19. When Rockstar
initially formed, for example, for a transitional period Rockstar would send licensing
correspondence using Rockstar Consortium Inc.’s Ottawa address. Id. ¶ 24. Once Rockstar relocated and settled into its current Plano location, it began sending licensing correspondence and
entering into agreements from its Plano office. Id. Thus, although Asus notes that “Rockstar’s
initial correspondence to Asus” originated from Canada, it makes no mention of subsequent
correspondence and agreements—which originated from Plano. See id. ¶ 24. For example, since
March 2012, Rockstar employees have signed non-disclosure agreements and other agreements
with a number of companies from Rockstar’s Plano office. Id.
B.

Rockstar Files this Action, Google Forum Shops to the NDCA

On October 31, 2013, Plaintiffs filed patent infringement lawsuits in the EDTX against
Asus, HTC, Huawei, LG, Pantech, Samsung, and ZTE. See Ex. 3. On December 23, 2014, rather
than intervene in this case, Google filed its action for declaratory judgment in the NDCA Ex. 4.
On December 31, 2013, Plaintiffs added Google as a defendant to the Samsung case in the
EDTX. See Case No. 2:13-cv-00900, Dkt. 19.

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IV.

ASUS’ MOTION FOR TRANSFER SHOULD BE DENIED
Because Plaintiffs could have filed suit in the NDCA, the transfer analysis depends on the

private and public interest factors with which this Court is familiar. 3
A.

Rockstar’s Meaningful, Longstanding Connections to the EDTX

Plaintiffs’ principal place of business is in Plano. Contrary to Asus’ unsupported
allegations, see Dkt. 41 at 4-5, the Plano office is not recent, ephemeral, or an artifact of
litigation. It is a fully operational office with full-time employees doing substantial patent
prosecution, licensing, and litigation support work. Powers Dec. at ¶ 23. Nortel prosecuted its
patents and ran programs to monetize those patents (including the patents-in-suit) out of
Richardson, less than a mile from the EDTX. Id. at ¶ 8. Today, Rockstar employs five full-time
employees in the Plano office, including three patent attorneys and an office administrator. Id. ¶
22 Rockstar’s licensing and litigation activities conducted in the Plano office are within
Rockstar’s normal course of business. Id ¶ 23. Additionally, Rockstar’s board meetings are held
at the Plano office, as are its annual strategy sessions. Id. ¶ 23. As noted above, Asus attempts to
focus on the Canadian office, employees, and licensing letters for Rockstar Consortium Inc. See
Dkt. 41 at 4-5. But Rockstar Consortium Inc.—which is not a party to this litigation—is a
different (although affiliated) entity from Rockstar Consortium US LP, a plaintiff in this case. Id.
¶ 6Rockstar’s meaningful ties to the EDTX are a far cry from the type of presence that courts
consider ephemeral or an artifact of litigation. 4 Unlike the venue manipulation facts of In re
Zimmer and In re Microsoft, here Rockstar has employees in the EDTX and it conducts its
ordinary business in the EDTX. 5 Powers Dec. ¶ 20; see In re Microsoft Corp., 630 F.3d 1361,
3

See, e.g., Thomas Swan & Co. v. Finisar Corp., 2014 U.S. Dist. LEXIS 773, at *4-6 (E.D. Tex. Jan. 6, 2014)
(Gilstrap, J.).
4

See In re Zimmer Holdings, Inc., 609 F.3d 1378, 1381 (Fed. Cir. 2010) (suggesting that the record will reveal
attempts at venue manipulation where a plaintiff’s alleged place of business for purposes of the litigation “is nothing
more than a mail drop box, a bare office with a computer, or the location of an annual executive retreat . . .”).
5

This case also differs from the recent In re Toyota decision, where the plaintiff brought suit in the EDTX just five
months after opening an office in the EDTX for venue purposes; here Rockstar moved to the EDTX from nearby

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1364-65 (Fed. Cir. 2011); In re Zimmer, 609 F.3d at 1381. Rather, Rockstar’s situation resembles
cases where this Court has found that the plaintiff’s ties to the EDTX, although recent, to be part
of a legitimate pursuit of business within the EDTX. 6 In RPost Holdings, the Court found that
the Texas office of a Delaware company was not an artifact of litigation where the Vice
President of Marketing worked in the office, and the office had relevant documents related to
marketing and sales. RPost Holdings, Inc. v. StrongMail Sys., 2013 U.S. Dist. LEXIS 116894, at
*8-9 (E.D. Tex. Aug. 19, 2013). Similarly, in Eolas Technologies the Court refused to consider a
plaintiff’s EDTX presence “recent and insubstantial” where its Chief Legal Officer lived and
worked in the EDTX, most of the company’s files were located in the EDTX, and the company
conducted research in the EDTX. Eolas Techs., Inc. v. Adobe Sys., Inc., 2010 U.S. Dist. LEXIS
104125, at *20-21 (E.D. Tex. Sept. 28, 2010).
B.

Each Of The Private-Interest Factors Weigh Heavily Against Transfer
1.

Both Rockstar’s and Third Parties’ Sources of Proof Favors Transfer

While the bulk of documents generally reside with the infringers (as Asus notes), that
evidence “cannot be the sole focus of this Court’s venue analysis.” 7 Virtualagility, 2014 U.S.
Dist. LEXIS 12015, at *12. Here “significant sources of proof exist within EDTX at least as
relates to the Plaintiff,” because documents related to the patents-in-suit are stored at Plaintiffs’
Plano headquarters. InMotion Imagery Techs., 2013 U.S. Dist. LEXIS 41830, at *9. Relevant
documents in Plano include historical Nortel files relating to patent licenses, patent licensing
efforts, and payment of royalties. Powers Dec. ¶ 29. These documents concerning licensing and
Richardson after Nortel sold its office buildings as part of its bankruptcy proceedings. Powers Dec. ¶ 20; see In re
Toyota Motor Corp., No. 2014-113, slip op. at 2-3 (Fed. Cir. April 3, 2014).
6

See InMotion Imagery Techs., LLC v. Imation Corp., 2013 U.S. Dist. LEXIS 41830, at *5-14 (E.D. Tex. Mar. 26,
2013) (Gilstrap, J.); Ex. 5, Bright Response LLC v. SAS Institute, Inc., No. 2:12-cv-280-JRG, Dkt. 28 at 5-8 (E.D.
Tex. March 26, 2013).
7

Regardless of Asus’ ties to California, it has not challenged venue in the EDTX in other litigation. See, e.g., Ex. 6,
Gellyfish Tech. of Texas, LLC v. Asus Computer Int’l, 2:10-cv-0034-TJW (E.D. Tex. 2010); Ex. 35, Traffic Info.,
LLC v. ASUS Computer Int’l, No. 2:11-cv-00457-MHS (E.D. Tex. 2011) ; Ex. 36, E-Contact Techs LLC v. Acer Am.
Corp., No. 1:12-cv-00352-RC (E.D. Tex. 2012).

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monetization of the patents-in-suit have resided in or near the EDTX since their time of creation
in the Nortel era. Hearn Dec. ¶ 6.
Courts also routinely look to third parties’ documents. Here those may include documents
from the patents-in-suits’ prosecuting attorneys who reside in Richardson and Irving; Asus’
customers, including Verizon and AT&T, which each maintain large facilities in Dallas; and
third parties related to the Nortel auction in New York (to the extent relevant). See Powers Dec.
at ¶ 26; Hearn Dec. ¶ 4; Exs. 30-34. The third party sources of proof referenced by Asus—
Google and Apple—should have no bearing on the transfer analysis. For the reasons discussed
below in section I.A-B, Google will not be a “crucial third-party witness” in this case, as Asus
asserts. See Dkt. 41 at 7. Regardless, neither Asus or Google has carried its burden of proof to
show the location of any relevant Google documents. See U.S. Ethernet Innovations, LLC v.
Samsung Elecs. Co., 2013 U.S. Dist. LEXIS 47384, at *7 (E.D. Tex. Apr. 2, 2013). Additionally,
Asus’ focus on Apple’s sources of proof is inapposite. Not only do the parties not dispute the
bids placed for the Nortel patent portfolio, but Rockstar’s equity owners do not direct or control
Rockstar’s licensing efforts. Powers Dec. ¶ 15. However, to the extent that testimony from Apple
is relevant, testimony from Apple is relevant, testimony from the other Nortel bidders and
Rockstar equity investors would be equally relevant, including Microsoft, Blackberry, Ericsson,
Sony, and Google. Ericsson maintains its headquarters within the EDTX and Blackberry is
headquartered in the Dallas area, just a few miles from the EDTX. See Exs. 7-10
2.

The Cost of Attendance for Willing Witnesses Favors Plaintiffs

Asus Fails to Meet its Burden of Proof. With respect Google witnesses, Google and
Asus specifically identify only two potential Google witnesses within the NDCA. See Dkt. 41 at
8. Mostly Google uses vague assertions, such as stating that operations for the products are
“predominantly based” at its headquarters, and “most employees” familiar with the business

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aspects of the products and “key engineers” on the products work from its headquarters. Case
No. 2:13-cv-894, Dkt. 52-29 at ¶ 6. Contrary to such vague assertions, publicly available
information suggests that Google’s Texas employees work on the development of the Android
platforms. Specifically, Jeff Hamilton, a software engineer on Google’s Android team who
specializes in “[o]perating systems development for mobile devices,” lives in Austin, Texas. Ex.
11. Thus, Google’s California-based witnesses should not be factored into the transfer analysis.
Rockstar Witnesses. Plaintiffs have no ties to the NDCA. Rockstar employees with
relevant knowledge live and work in the EDTX. The EDTX is also more convenient for those
employees who are home-based (primarily on the East Coast) and regularly commute to Plano.
Rockstar employees with relevant knowledge include Donald Powers, who works full-time in the
Plano headquarters and has material information related to this suit, including knowledge of
Nortel and Rockstar’s corporate organization and structure, documents investigated for purposes
of this suit, and employees and other parties with knowledge about the patents-in-suit. Powers
Dec. ¶¶ 1–2. Bernard Tiegerman, Rockstar’s Senior Patent Counsel, possesses material
information related to Plaintiffs’ licensing efforts. Id. ¶ 26; Tiegerman Dec. ¶ X. Mr. Tiegerman
works full-time out of Rockstar’s Plano headquarters and lives in Dallas. Id. Mark Hearn is
Senior Licensing Counsel for Rockstar and previously worked for Nortel for over 13 years (in its
Richardson office) as Senior Counsel. Hearn Dec. ¶ 1. He works full-time from Rockstar’s Plano
office and lives in Dallas. Id ¶ 2. “Where a transfer will only shift the inconvenience from one
district to another, the movant has not met its burden of persuasion.” See Thomas Swan & Co.,
2014 U.S. Dist. LEXIS 773, at *13. See also, McColgan Decl., Veschi Decl., and Fako Decl.
3.

The Availability of Compulsory Process Favors Plaintiffs

This factor examines the availability of compulsory process to secure the attendance of
unwilling third-party witnesses. Virtualagility, 2014 U.S. Dist. LEXIS 12015, at *13. The third-

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party witnesses identified by Asus should be accorded little weight because either they are likely
within Asus’ control or not identified with specificity, their testimony has little or no relevance to
issues in the case, or their testimony will be available via deposition. On the other hand, the most
important third-party witnesses will likely be located in the EDTX, on the East Coast, or in
Canada. On balance, the analysis cuts decisively in Plaintiffs’ favor.
Allegations As To Google Witnesses Lack Specificity or Showing of Unwillingness.
Asus’ vague reference to unidentified “Google witnesses with knowledge” (Dkt. 41 at 9)
allegedly “concentrated” in California warrants no evidentiary weight because it lacks the
required level of specificity. 8 “Defendants are asking the Court to attribute more weight based on
this assertion of a potential likelihood that an un-named and otherwise unidentified third-party
witness may or may not be used for trial sometime in the future.” Wi-Lan Inc. v. HTC Corp.,
2013 U.S. Dist. LEXIS 99635, at *30 (E.D. Tex. July 17, 2013) (Gilstrap, J.); see also In re
Toyota, No. 2014-113, slip op. at 4 n.1. Moreover, Asus has not attempted to make any showing
that the Google witnesses would be “unwilling” witnesses that require compulsory process. See
Tex. Data Co., LLC v. Target Brands, Inc., 771 F. Supp. 2d 630, 643 (E.D. Tex. 2011). Indeed,
Asus first lists Google witnesses under the “willing witnesses” factor, recognizing that
compulsory process will not be necessary for Google’s employee witnesses. See Dkt. 41 at 8-9.
Inventors Across the Country. The majority of the inventors of the patents-in-suit reside
in Canada or the East Coast (New York, Massachusetts, New Hampshire, North Carolina). See
Budwin Dec. ¶¶ 3-5. Five named inventors on the patents-in-suit (two from Canada and therefore
subject to the Hague Convention) have agreed to travel to EDTX to provide testimony. 9 See
8

See Internet Machs. LLC v. Alienware Corp., 2011 U.S. Dist. LEXIS 66207, at *22 (E.D. Tex. Jun. 7, 2011)
(finding that a party must at least identify witnesses who would require compulsory process); Core Wireless
Licensing, S.A.R.L. v. Apple, Inc., 2013 U.S. Dist. LEXIS, at *9-10 (E. D. Tex. Feb. 22, 2013) (finding assertions
that “the alleged infringing products were designed and developed in Cupertino, CA and the employees responsible
for that development are based in the Cupertino area” to be “vague” such that “weighing [them in the analysis] …
would be merely speculative”).
9

See Ex. 12, Tr. of Motion to Transfer Hr’g, Solid State Solutions, Inc. v. Stec, Inc., 2:11-cv-391-JRG-RSP, at

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Colvin Dec., Wooten Dec., Poisson Dec., St. George Dec., and Egan Dec.
Prior Artists. Asus argues that “dozens of relevant prior artists” live in the NDCA. Dkt.
41 at 9. But of the hundreds of inventors of the prior art patents that appear on the face of the
patents-in-suit, only 39 reside in the NDCA. Budwin Dec. ¶¶ 3-5. The remainder are scattered
throughout the world, including at least 12 in Texas, 91 on the East Coast, and 24 overseas. Id..
Of the prior art inventors residing in Texas, three appear to reside in the Dallas area—within the
“absolute subpoena power” of the Court. Id.. And importantly, “inventors of prior art rarely, if
ever, actually testify at trial,” and therefore it is more important to examine other categories of
witnesses. 10
Rockstar Equity Owners and Nortel Bidders Will Be Irrelevant. Asus’ focus on Apple is
inapposite: the parties do not dispute the amounts of the bids placed for the Nortel patent
portfolio. Additionally, Rockstar’s equity owners do not direct or control Rockstar’s licensing
efforts. Powers Dec. ¶ 15. However, to the extent that testimony from Apple is relevant,
testimony from the other Nortel bidders and Rockstar equity investors would be equally relevant,
including Microsoft, Blackberry, Ericsson, Sony, and Google. 11 Ericsson maintains its
headquarters in the EDTX and Blackberry is headquartered in the Dallas area, just a few miles
from the EDTX. Exs. 7-10.
Prosecuting Attorneys. The attorneys who prosecuted the patents-in-suit are likely to
have material information related to this case. 12 Contrary to Asus’ conclusory assertion, two of
the attorneys responsible for prosecuting the patents-in-suit live and work in Texas (one in
Richardson, within the EDTX); three live in North Carolina; one lives in New Jersey; none live
115:3-6 (E.D. Tex. Jan. 18, 2013).
10

See Ex. 13, PersonalWeb Techs., LLC v. NEC Corp., No. 6:11-cv-655, Dkt. 74 at 16 n.13 (E.D. Tex. Mar. 21,
2013); see also RPost Holdings, 2013 U.S. Dist. LEXIS 116894, at *10-11.
11

The former head of patent strategy for Google, who likely has relevant knowledge regarding Google’s bidding for
the patents-in-suit, now lives on the East Coast. Exs. 37, 38.
12

See In re Acer Am. Corp., 626 F.3d 1252, 1255 (Fed. Cir. 2010) (prosecuting attorneys are likely witnesses).

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in California. Budwin Dec. ¶ 6.
Former Nortel Employees. Several former Nortel employees who possess material
information and are not employed by Plaintiffs reside in or near the EDTX. Art Fisher, Nortel’s
VP for IP Law 1998–2004, resides in the Dallas area. Ex. 14; Powers Dec. ¶ 31. Rich Weiss
served as Nortel’s Deputy IP Counsel from 1997–2008 and works in McKinney, in the EDTX.
Powers Dec. ¶ 31. Mr. Fisher and Mr. Weiss possess knowledge related to Nortel’s licensing
practices and policies during the years of their employment. See id.
Asus Customers in EDTX. Asus customers represent a key link in the supply chain for
the infringing hardware and will provide important evidence regarding damages. Several of those
customers have significant facilities in North Texas. For instance, AT&T Mobility is
headquartered in Dallas, and Verizon has a Richardson facility with 2,250 employees. 13
Using Third-Party Witness Depositions Will Not Result in “Serious Inconvenience.”
Asus argues that it would be “inconvenienced” and it would be “prejudicial” to Asus if at trial it
can present evidence regarding Apples’ valuation of the Nortel patent portfolio only through
video deposition. Dkt. 41 at 11. But this Court recently rejected a similar assertion in
Virtualagility, 2014 U.S. Dist. LEXIS 12015, at *18-19. Moreover, to the extent Apple’s
testimony is relevant, it is just as relevant as the testimony of Dallas-area resident BlackBerry
and EDTX resident Ericsson, who also bid on the Nortel portfolio as part of the Rockstar Bidco.
4.

The Judicial Economy Factor Favors Plaintiffs

The “Federal Circuit has emphatically instructed” that the “existence of duplicative suits
involving the same or similar issues creates practical difficulties that will weigh heavily in favor
or against transfer (in order to try duplicative suits in the same venue).” 14 Indeed, the Supreme
13

See Geotag, Inc. v. Aromatique, Inc., 2013 U.S. Dist. LEXIS 173481, at *20-21 (E.D. Tex. Jan. 14, 2013);
Thomas Swan & Co., 2014 U.S. Dist. LEXIS 773, at *9. Although evidence from these customers would likely be
sought via Rule 30(b)(6) requests, individuals with this knowledge include: Brad Bridges, Kevin Jeffries, John
Stephens, Joe Tesson, Mark Madere, Kelly Haltom, and David Pluss. See Exs. 15-21.
14

Ctr. One v. Vonage Holdings Corp., 2009 U.S. Dist. LEXIS 69683, at *22 (E.D. Tex. Aug. 10, 2009); see In re

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Court has made clear that transferring an overlapping suit to another district “leads to the
wastefulness of time, energy, and money that § 1404(a) was designed to prevent.” Continental
Grain Co. v. Barge FBL-585, 364 U.S. 19, 26 (1960); see also Adrain v. Genetec Inc., 2009 U.S.
Dist. LEXIS 86855, at *9 (E.D. Tex. Sept. 22, 2009).
Asus takes the position that “there are no practical problems with transferring [this]
case.” Dkt. 41 at 11. Yet this case is one of six filed by Rockstar in the EDTX involving the
same patents and technologies, which this Court has already consolidated for pre-trial purposes.
Dkt. 51. At a minimum, the cases will call for common information regarding claim
construction, the Nortel auction, as well as Nortel’s and Rockstar’s history and corporate
structure. Powers Dec. ¶ 29. And the defendants will almost certainly file counterclaims with
similar or identical invalidity counterclaims. If transfer were granted in this case, five other
defendants would continue to litigate duplicative claims in this Court. 15 The existence of
overlapping suits “involving the same or similar issues creates practical difficulties that will
weigh heavily … against” transferring one of those suits to another venue. 16 Virtualagility, 2014
U.S. Dist. LEXIS 12015, at *22.
C.

The Public Interest Factors Slightly Favor Venue in the EDTX

“Local interest arises when a district is home to a party because the suit may call into
question the reputation of individuals that work in the community.” In re Hoffman-La Roche,
587 F.3d 1333, 1336 (Fed. Cir. 2009). Here that standard is met: Plaintiffs run their business

Volkswagen of Am., Inc., 566 F.3d 1349, 1351 (Fed. Cir. 2009) (describing this issue as “a paramount consideration”
in the transfer analysis); Regents of Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1565 (Fed. Cir. 1997) (noting
that considerations such as these “may be determinative to a particular transfer motion”).
15

More of the Defendants are closer to the EDTX. See Budwin Dec. at 2. Here, as in In re Apple, “[a]s compared to
those cases in which this court granted mandamus, here there are fewer defendants in the [NDCA] and potential
evidence identified in the [EDTX], along with defendants and witnesses that will find it easier and more convenient
to try this case in the Eastern District of Texas.” In re Apple Inc., 456 F. App’x 907, 909 (Fed. Cir. 2012).
16

See also Ho Keung TSE v. Google, Inc., 2012 U.S. Dist. LEXIS 176509, at *10 (E.D. Tex. Dec. 13, 2012)
(transferring case from EDTX to district where claims involving the same patent were already pending).

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from the EDTX. Powers Dec. ¶ 20. In addition, the patents-in-suit are the result of research
undertaken by Nortel, which maintained its U.S. location in Richardson for two decades. Id. ¶ 8.
Thus, this factor either favors Plaintiffs or is neutral. 17
Plaintiffs agree that the remaining public interest factors—court congestion, familiarity of
the forum with the governing law, and the avoidance of conflicts of laws—are neutral.
D.

The Purportedly “Similar” Cases Relied on by Asus Differ from this Case

Asus attempts to twist this Court’s precedent to suggest that transfer is appropriate. See
Dkt. 41 at 12-13. First, in Touchscreen Gestures v. HTC, neither party had headquarters,
documents, or party witnesses located in the EDTX. No. 12-0261, Dkt. 17 at 1, 6, 9 (E.D. Tex.
Mar. 27, 2013). In contrast, here Rockstar’s headquarters, documents, and party witnesses are
located in the EDTX (as are those of Samsung and ZTE, defendants in the related actions).
Second, in Ingeniador, “[n]o party contend[ed] that relevant evidence exists in the Eastern
District.” 2014 U.S. Dist. LEXIS 3308 at *4-5. But here, Rockstar has relevant evidence that
exists within the EDTX (as do Samsung and ZTE, in the related actions). Supra section B.1B.2.
Moreover, in Ingeniador, “none of Plaintiff’s witnesses reside or work in the Eastern District of
Texas.” 2014 U.S. Dist. LEXIS 3308 at *8. In contrast, Rockstar is headquartered here and many
of its witnesses reside and work in the EDTX. Powers Dec. ¶ 31. Finally, in Blue Spike, LLC v.
Texas Instruments, Inc., the plaintiff could point to “no third-party witnesses that this Court would
have absolute subpoena power over.” No. 12-558, Dkt. 16 at 5 (E.D. Tex. Mar. 13, 2014).
Rockstar, however, has identified many third-party witnesses within this Court’s subpoena
power. Supra section B.1.
V.

DEFENDANTS’ REQUEST FOR A STAY SHOULD BE DENIED.
A.

This Action is Not a Manufacturer-Customer Suit

Asus misleadingly asserts that the NDCA Action will answer “many, if not all, of the
17

See Thomas Swan, 2014 U.S. Dist. LEXIS 773, at *16; Virtualagility, 2014 U.S. Dist. LEXIS 12015, at *23.

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central questions at issue here.” Dkt. 41 at 13. But while the accused devices each run different
versions of the Android operating system, this case is not about Android. 18 Of the seven patents
at-issue in this case, none is alleged by Plaintiffs to read solely on functions or features found in
Android software. See, e.g., Ex. 22. In fact, the ’551 patent covers only the hardware
implementation within Asus’ accused products—it has no tie to Android. See id.; Ex. 23. As to
the other six patents at-issue, each covers the combination of hardware (designed solely by the
original equipment manufacturers, like Asus) with software. These patents require “sending,” 19
“receiving,” 20 “displaying,” 21 and “storing” 22—functionality that occurs within hardware. See
Microsoft Corp. v. Commonwealth Sci. & Indus. Res. Org., 2007 U.S. Dist. LEXIS 91550, at *10
(E.D. Tex. Dec. 13, 2007).
Even if Plaintiffs’ infringement allegations were focused on Android, as Asus asserts,
Asus’ invocation of the “customer suit exception” to the first-to-file rule is still misplaced.
While, as a general matter, litigation against the manufacturer of infringing goods takes
precedence over a suit against that manufacturer’s customers, see Spread Spectrum Screening
LLC v. Eastman Kodak, 657 F.3d 1349, 1357 (Fed. Cir. 2011), a stay is inappropriate when codefendants are more than ordinary end users or resellers of the accused products. 23 As in

18

Android is an open-source software project managed by Google, but contributed to by many other entities and
individuals, including Asus, the defendants in the other cases, and members of the public. See Exs. 24, 25-27.
19

Claims 14, 15, 19, 23, 24, 27, 28, and 31 of the ’298; claims 1, and 5 of the ’131.

20

Claims 1, 2, 13, and 14 of the ’937; claims 11, 12, 14, 15, 16, 19, 23, 24, 25, 27, 28, 29, 31, and 32 of the ’298;
claims 1, 4, 8, 21, and 33 of the ’973; claims 1 and 5 of the ’131; claim 17 of the ’572; claim 1 of the ’591.
21

Claims 1, 3, 8-11, 13-15, 19, and 20-23 of the ’937; claims 1-6, 8-12, 21, and 24-26 of the ’973; claim 1 of the
’591; claim 17 of the ’572.
22

Claims 17, 19, 23, and 30 of the ’298; claim 20 of the ’572.

23

In Virtualagility, 2014 U.S. Dist. LEXIS 12015, at *6-8, this Court rejected the argument “that because
[Defendant] is the sole maker of the accused . . . applications, [Defendant’s] ‘development, manufacturing and
marketing’ of these products are ‘key evidence’ in this litigation and should be the sole focus of this Court’s venue
analysis.” Instead, this Court found that the co-defendant was “far more than just an ‘ordinary user’ of the accused
products” based on the extent of the collaboration between the alleged customer and manufacturer. See also Lodsys
v. Brother Int’l Corp., 2013 U.S. Dist. LEXIS 51336, 43 (E.D. Tex. Jan. 14, 2013); Pragmatus Telecom, LLC v.
Neiman Marcus Group, Inc., 2012 U.S. Dist. LEXIS 189149, at *7 (E.D. Tex. Nov. 20, 2012).

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Virtualagility, here Samsung is “far more than just an ‘ordinary user’ of the accused products.”
Id. While Asus argues that “Android originates with Google” (Dkt. 41 at 13), the reality is that
each of the defendants, including Asus, develops and contributes to the source code to create its
own, unique version of the Android platform. See, e.g., Exs. 26, 27. Rockstar’s infringement
contentions (without having received discovery on the issue) reflect that each defendant makes
proprietary, extensive modifications to the Android code for implementation in its own mobile
devices—and those changes are material to the claims of infringement in this case. 24
B.

The NDCA Action Would Not Resolve the “Major Issues” in This Case

Asus does not attempt to show how the NDCA Action (to which Asus is not a party)
would resolve the “major issues” in this case. Spread Spectrum, 657 F.3d at 1358; see Dkt. 52 at
4-5. Nor can it—Asus has not agreed to be bound by the resolution of the NDCA Action (i.e.
infringement and invalidity). 25 In any event, the NDCA Action cannot resolve the major,
hardware-specific issues raised by Rockstar’s infringement claims against Asus.
Even if resolution of the claims against Google would resolve the issues of infringement
and invalidity against Asus and the other hardware manufacturers (which it would not), it would
not resolve the individualized questions of damages with respect to Asus, Samsung, HTC, LG,
ZTE, and Pantech. See Secure Axcess, LLC v. Nintendo of Am., Inc., 2014 U.S. Dist.
LEXIS30115, at *19-20 (E.D. Tex. Mar. 7, 2014) (Gilstrap, J.). “Damages is no less a core issue
in a patent infringement case than the issues of infringement and validity.” Id. at *21. As
required by the Federal Circuit, Rockstar’s damages model against each defendant will
necessarily be distinct, grounded in the specific facts relating to each defendant and based on an
24

Rockstar’s infringement contentions reflect considerable differences between each defendants’ implementation of
the Android platform, suggesting that each defendant significantly customizes the Android platform for use in its
own products. See, e.g., Ex 39.
25

See, e.g., Kahn v. Gen. Motors Corp., 889 F.2d 1078, 1082 (Fed. Cir. 1989) (noting that GM had “not agreed to be
bound by the Illinois decision or any injunction against Motorola”); Pragmatus, 2012 U.S. Dist. LEXIS 189149, at
*8 (observing that “it appears there is still some indecision regarding agreements to be bound by the Defendants”).

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individualized analysis of the sales of the different accused products. See Uniloc USA, Inc. v.
Microsoft Corp., 632 F.3d 1292, 1317-18 (Fed. Cir. 2011). Here, as in Secure Axcess, “as to the
issue of damages, the claims against [Asus] are not peripheral to those of” Google. Secure
Axcess, 2014 U.S. Dist. LEXIS30115, at *21.
C.

The Customer-Suit Exception Does Not Apply Because Google—the
Purported “Manufacturer”—Is A Party to the First Filed Action

Asus relies heavily on one unreported case from Michigan. See Dkt. 41 at 13 (citing
Delphi Corp. v. Auto. Techs. Int’l, Inc., 2008 U.S. Dist. LEXIS 56463, at *5 (E.D. Mich. July 25,
2008)). But the same Michigan court has clarified that the customer-suit exception is
inapplicable when, as is the case here, “the manufacturer not only can be, but is a party to the
first-filed litigation[.]” Drew Techs., Inc. v. Robert Bosch, LLC, 2012 U.S. Dist. LEXIS 11489, at
*12-16 (E.D. Mich. Jan. 31, 2012). Here a stay is inappropriate because Google is a party to the
first-filed action. Id. at *12-16.
D.

The NDCA Lacks Personal Jurisdiction Over Rockstar and MobileStar

Finally, the Court should deny a stay because the NDCA lacks personal jurisdiction over
Plaintiffs. Exs. 28, 29.
VI.

CONCLUSION
For these reasons, Plaintiffs respectfully ask that the Court deny the Asus’ motion to

transfer or stay this case.

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Dated: April 14, 2014.

Respectfully submitted,
MCKOOL SMITH P.C.

/s/ Theodore Stevenson, III
Mike McKool, Jr.
Texas Bar No. 13732100
[e-mail]
Douglas A. Cawley
Texas Bar No. 0403550
[e-mail]
Theodore Stevenson, III
LEAD ATTORNEY
Texas State Bar No. 19196650
[e-mail]
David Sochia
Texas State Bar No. 00797470
[e-mail]
Ryan A. Hargrave
Texas State Bar No. 24071516
[e-mail]
MCKOOL SMITH P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: [phone]
Facsimile: [phone]
Joshua W. Budwin
Texas State Bar No. 24050347
[e-mail]
MCKOOL SMITH P.C.
300 W. 6th Street, Suite 1700
Austin, Texas 78701
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR PLAINTIFFS
ROCKSTAR CONSORTIUM US LP and
MOBILESTAR TECHNOLOGIES LLC

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a) on April 14, 2014. As such, this document was served on
all counsel who are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A).

/s/ Theodore Stevenson, III

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