Google Inc. v. Rockstar Consortium US LP et al

Filing 67

MOTION to Transfer Case or, in the Alternative to Stay filed by MobileStar Technologies LLC, Rockstar Consortium US LP. Motion Hearing set for 6/26/2014 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 5/23/2014. Replies due by 5/30/2014. (Attachments: # 1 Declaration of Joshua Budwin, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Declaration of William Colvin, # 38 Declaration of Brian Egan, # 39 Declaration of Erik Fako, # 40 Declaration of Mark Hearn, # 41 Declaration of Gillian Mccolgan, # 42 Declaration of Matthew Poisson, # 43 Declaration of Donald Powers, # 44 Declaration of Marilyn French-St. George, # 45 Declaration of John Veschi, # 46 Declaration of Bruce Anthony Wootton, # 47 Proposed Order)(Budwin, Joshua) (Filed on 5/9/2014)

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Courtland L. Reichman (SBN 268873)
[e-mail]
McKool Smith Hennigan, P.C.
255 Shoreline Drive Suite 510
Redwood Shores, CA 94065
[phone]
[phone] (facsimile)
ADDITIONAL COUNSEL LISTED ON
SIGNATURE PAGE
Attorneys for Defendants
Rockstar Consortium U.S. LP and
MobileStar Technologies LLC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND

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Google, Inc.

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Plaintiff,

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vs.
Rockstar Consortium U.S. LP and MobileStar
Technologies LLC
Defendants.

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Case No. 13-cv-5933
DEFENDANTS’ MOTION TO
TRANSFER UNDER 28 USC §
1404(a) OR, IN THE
ALTERNATIVE, TO STAY
Date: June 26, 2014
Time: 2:00 p.m.
Courtroom: TBD
Judge: Hon. Claudia Wilken

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DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY
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TABLE OF CONTENTS

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I.

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

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II.

LEGAL STANDARD ..........................................................................................................2

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III.

STATEMENT OF FACTS...................................................................................................3

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A.

Nortel and Defendants’ Longstanding Ties to the EDTX .......................................3

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B.

Google’s Connections to the Eastern District of Texas ...........................................6

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C.

Defendants File the Texas Actions, Google Files This Case ...................................6

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IV.

THE COURT’S PERSONAL JURISDICTION DECISION
SHOULD NOT IMPACT THE TRANSFER ANALYSIS .................................................7

V.

THE SECTION 1404 FACTORS WEIGH HEAVILY IN FAVOR
OF TRANSFER ...................................................................................................................8

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A.

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The Interests of Justice and Efficient Use of Judicial
Resources Weigh Dispositively in Favor of Transfer ..............................................8
1.

Failure to Transfer Will Result In Waste of Judicial
Resources .....................................................................................................9

2.

Denying Transfer Creates the Risk of Inconsistent
Judgments ..................................................................................................10

3.

The Texas Actions Can Resolve “Major Issues” Not
Before This Court.......................................................................................11

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B.

Google’s Choice of this Forum Amounts to Forum
Shopping ................................................................................................................15

C.

Convenience of The Parties and Party Witnesses Favors
Transfer ..................................................................................................................16

D.

Convenience of Non-Party Witnesses Favors Transfer .........................................17

E.

Ease of Access To Evidence Weighs in Favor of Transfer ...................................19

F.

Feasibility of Consolidation Favors Transfer ........................................................19

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DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

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G.

Rockstar’s Meaningful, Longstanding Connections to the
EDTX .....................................................................................................................20

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H.

Local Interest Is, At The Very Least, Neutral ........................................................21

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I.

Relative Court Congestion and Time to Trial Somewhat
Favor Transfer ........................................................................................................22

J.

Difference in the Costs of Litigation Favor the EDTX..........................................22

K.

Familiarity With Applicable Law Factor Is Neutral ..............................................23

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VI.

IN THE ALTERNATIVE, THE COURT SHOULD STAY THIS
ACTION PENDING RESOLUTION OF THE TEXAS ACTION ...................................23

VII.

CONCLUSION .................................................................................................................24

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DEFENDANTS’ MOTION TO TRANSFER UNDER
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TABLE OF AUTHORITIES

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Page(s)

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CASES
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Applied Elastomerics, Inc. v. Z-Man Fishing Prods.,
2006 U.S. Dist. LEXIS 75339 (N.D. Cal. Oct. 6, 2006) (Wilkens, J.) ..............................17, 21
Bite Tech, Inc. v. X2 Impact, Inc.,
2013 U.S. Dist. LEXIS 31791 (N.D. Cal. March 7, 2013) ......................................................19
Cadence Design Sys. v. OEA Int’l, Inc.,
2011 U.S. Dist. LEXIS 106739 (N.D. Cal. Sept. 19, 2011) (Wilken, J.) ......................9, 14, 15

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Cisco Sys. v. TiVo, Inc.,
2012 U.S. Dist. LEXIS 112923 (N.D. Cal. Aug. 10, 2012).....................................................22
Contentguard Holdings, Inc., v. Google, Inc.,
No. 2:14-cv-00061-JRG, Dkt. 38 at 11 (E.D. Tex. Apr. 16, 2014) .........................................21
Continental Grain Co. v. The FBL-585,
364 U.S. 19 (1960) .....................................................................................................................9

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CoxCom, Inc. v. Hybrid Patents, Inc.,
2007 U.S. Dist. LEXIS 67168 (N.D. Cal. Aug. 30, 2007).......................................................20
GLT Technovations, LLC v. Fownes Bros. & Co.,
2012 U.S. Dist. LEXIS 56028 (N.D. Cal. Apr. 20, 2012) .................................................20, 21
Google, Inc. v. Contentguard Holdings, Inc.,
No. C 14-00498 WHA, Dkt. 42 at 2 (N.D. Cal. Apr. 15, 2014) ..............................................23

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Hoover Grp. v. Custom Metalcraft,
84 F.3d 1408 (Fed. Cir. 1996)....................................................................................................3
Hynix Semiconductor, Inc. v. Rambus, Inc.,
2009 U.S. Dist. LEXIS 10939 (N.D. Cal. Feb. 3, 2009) .........................................................23
In re Acer Am. Corp.,
626 F.3d 1252 (Fed. Cir. 2010)................................................................................................18

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In re Apple Inc.,
456 F. App’x 907 (Fed. Cir. 2012) ..........................................................................................10
In re Eli Lilly & Co.,
541 Fed. App’x 993 (Fed. Cir. 2013).........................................................................................9
DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

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In re Hoffman-La Roche,
587 F.3d 1333 (Fed. Cir. 2009)................................................................................................21
In re Microsoft Corp.,
630 F.3d 1361 (Fed. Cir. 2011)................................................................................................21

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In re Microsoft Corp.,
No. 2014-123, slip op. (Fed. Cir. May 5, 2014) ........................................................................9
In re Vistaprint Ltd.,
628 F.3d 1342 (Fed. Cir. 2010)..................................................................................................9
In re Zimmer Holdings, Inc.,
609 F.3d 1378 (Fed. Cir. 2010)..........................................................................................20, 21
JACO Envtl. Inc. v. Appliance Recycling Ctrs. of Am.,
2007 U.S. Dist. LEXIS 27421 (N.D. Cal. Mar. 27, 2007) .......................................................15
Kahn v. Gen. Motors Corp.,
889 F.2d 1078 (Fed. Cir. 1989)................................................................................................11

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Leviton Mfg. Co., Inc. v. Interline Brands, Inc.,
2006 U.S. Dist. LEXIS 61944 (M.D. Fla. Aug. 30, 2006) ......................................................23
London & Hull Mar. Ltd. v. Eagle Pac. Ins. Co.,
1996 U.S. Dist. LEXIS 22893 (N.D. Cal. Aug. 14, 1996) (Wilken, J.)...............................9, 10
Mears Techs., Inc. v. Finisar Corp.,
2014 U.S. Dist. LEXIS 56880 (E.D. Tex. Apr. 24, 2014) .......................................................22

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MobileMedia Ideas LLC v. HTC Corp.,
2012 U.S. Dist. LEXIS 62153 (E.D. Tex. May 3, 2012) .........................................................16
MTS Sys. Corp. v. Hy-Sitron, Inc.,
2006 U.S. Dist. LEXIS 66338 (N.D. Cal. Sept. 1, 2006) ....................................................2, 19
Mycone Dental Supply Co. v. Creative Nail Design, Inc.,
No. C 12-747, Dkt. 52 at 5 (N.D. Cal. May 30, 2012) ............................................................12

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Nat'l Broom Co. of Cal. v. Brookstone Co.,
2009 U.S. Dist. LEXIS 69630 (N.D. Cal. July 30, 2009) ..................................................14, 23
Natural Wellness Ctrs. of Am., Inc. v. Golden Health Prods.,
2013 U.S. Dist. LEXIS 8658 (N.D. Cal. Jan. 22, 2013) (Wilkens, J.).....................................17
Panavision Int’l L.P v. Toeppen,
141 F.3d 1315 (9th Cir. 1998) .................................................................................................19

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Proofpoint, Inc. v. InNova Patent Licensing, LLC,
2011 U.S. Dist. LEXIS 120343 (N.D. Cal. Oct. 17, 2011)......................................................10
Regents of the Univ. of California v. Eli Lilly & Co.,
119 F.3d 1559 (Fed. Cir. 1997)..................................................................................................9

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Ricoh Company v. Aeroflex Inc.,
279 F. Supp. 2d 554 (D. Del. 2003) .........................................................................................23
Rockstar Consortium US LP v. Samsung Electronics. Co., Ltd.,
Civil Action No. 13-cv-0900-JRG, pending ..............................................................................1
Secure Axcess, LLC v. Nintendo of Am., Inc.,
2014 U.S. Dist. LEXIS 30115 (E.D. Tex. Mar. 7, 2014) (Gilstrap, J.) .............................14, 15
Silverlit Toys Manufactory, LTD. v. Absolute Toy Mktg.,
2007 U.S. Dist. LEXIS 14538 (N.D. Cal. Feb. 15, 2007) .......................................................19
Sorensen v. Phillips Plastics Corp.,
2008 U.S. Dist. LEXIS 81710 (N.D. Cal. Oct. 9, 2008)..........................................................22

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Spread Spectrum Screening LLC v. Eastman Kodak Co.,
657 F.3d 1349 (Fed. Cir. 2011)................................................................................................11
Stewart Org., Inc. v. Ricoh Corp.,
487 U.S. 22 (1988) .................................................................................................................3, 8
Synopsys Inc. v. Mentor Graphics Corp.,
2013 U.S. Dist. LEXIS 48544 (N.D. Cal. Apr. 3, 2013) ...................................................17, 18

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TransPerfect Global, Inc. v. MotionPoint Corp.,
2010 U.S. Dist. LEXIS 99947 (N.D. Cal. Sept. 13, 2010) ............................................2, 16, 17
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) ........................................................19

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Wi-Lan Inc. v. HTC Corp.,
2013 U.S. Dist. LEXIS 99635 (E.D. Tex. July 17, 2013)........................................................17

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DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

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STATUTES
28 U.S.C. § 1391 ..........................................................................................................................2, 7

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28 U.S.C. § 1404 .................................................................................................................... passim
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Del. Code Ann. Title § 17-303 (2014) .............................................................................................8
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DEFENDANTS’ MOTION TO TRANSFER UNDER
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NOTICE OF MOTION

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TO PLAINTIFF GOOGLE INC. AND ITS COUNSEL OF RECORD:

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PLEASE TAKE NOTICE that on June 26, 2014, at 2:00 p.m. or as soon thereafter as it

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may be heard, Defendants Rockstar Consortium US LP and MobileStar Technologies LLC

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(collectively, “Defendants”) will and hereby do respectfully move to transfer this case to the

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United States District Court for the Eastern District of Texas, or, in the alternative, stay this case

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pending the resolution of Rockstar Consortium US LP v. Samsung Electronics. Co., Ltd., Civil

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Action No. 13-cv-0900-JRG, pending in the United States District Court for the Eastern District

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of Texas. Defendants’ motion is based on this notice, the accompanying memorandum of points

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and authorities, the pleadings on file, the record in this matter, and any other argument that the

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Court deems appropriate for consideration.

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RELIEF REQUESTED

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Defendants seek an order granting their motion to transfer this case to the United States

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District Court for the Eastern District of Texas, or, in the alternative, an order staying this case

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pending the resolution of Rockstar Consortium US LP v. Samsung Electronics. Co., Ltd., Civil

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Action No. 13-cv-0900-JRG, pending in the United States District Court for the Eastern District

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of Texas.

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Respectfully submitted,

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Dated May 9, 2014.

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By: /s/ Joshua W. Budwin
Courtland L. Reichman (SBN 268873)
McKool Smith Hennigan, P.C.
255 Shoreline Drive Suite 510
Redwood Shores, CA 94065
[phone]
[phone] (facsimile)

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Mike McKool (Admitted Pro Hac Vice)
[e-mail]
Douglas A. Cawley (Admitted Pro Hac Vice)
[e-mail]
Ted Stevenson III (Admitted Pro Hac Vice)
[e-mail]
David Sochia (Admitted Pro Hac Vice)

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DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

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[e-mail]
McKool Smith, P.C.
300 Crescent Court Suite 1500
Dallas, TX 75201
[phone]
[phone] (facsimile)

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Joshua W. Budwin (Admitted Pro Hac Vice)
[e-mail]
McKool Smith, P.C.
300 W. 6th Street, Suite 1700
Austin, TX 78701
[phone]
[phone] (facsimile)

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Attorneys for Defendants
Rockstar Consortium U.S. LP and
MobileStar Technologies LLC

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DEFENDANTS’ MOTION TO TRANSFER UNDER
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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION

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Pursuant to 28 U.S.C. § 1404, Rockstar Consortium US LP (“Rockstar”) and MobileStar

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Technologies LLC’s (“MobileStar”) (collectively “Defendants”) respectfully move this Court for

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an order transferring this case to the U.S. District Court for the Eastern District of Texas

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(“EDTX”). Transfer is appropriate under 28 U.S.C. § 1404(a). 1 Defendants have deep ties to the

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EDTX, where cases against Google and five other Texas defendants are already pending.

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Rockstar’s headquarters, witnesses, and evidence are all located in the EDTX. And Google does

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not argue that its declaratory judgment claim could not have been brought in the EDTX.

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Ultimately, the EDTX is the most convenient venue for this suit due to considerations of

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judicial economy: the EDTX Court is situated to resolve all of Defendants’ claims against

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Google, as well as all of Defendants’ related claims against the other Texas defendants. In its

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Texas case, Google has not moved to sever itself from Samsung, its EDTX-based co-defendant.

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Therefore, the exact same issues of patent infringement that are present before this Court as to

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Google and its Nexus devices are also present in the Texas Action. Google presents no reason—

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other than forum shopping—as to why it was forced to file its complaint for declaratory relief in

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this District as opposed to intervening in the Texas Action. Judicial economy is not served by

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conducting parallel proceedings in this District and the EDTX concerning Google’s infringement

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of the patents-in-suit by the Google Nexus devices at-issue in both forums. 2

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Google has alleged that Defendants previously raised transfer under § 1404 (Dkt. 30-4 at 23).
Defendants have not. See Dkt. 39-4. In their Motion to Dismiss, Defendants asked the Court to
decline to exercise jurisdiction—an argument that shares common factors with the § 1404(a)
analysis. But Defendants have not previously moved to transfer under § 1404(a) or based on
forum non-conveniens, nor have Defendants asked for a stay. As such, Defendants do not
believe, and do not intend for this to be, a motion for reconsideration pursuant to L.R. 7-9.
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Google’s complaint refers to and seeks an adjudication of non-infringement regarding what it
terms the “Android Platform.” However, that term is vague, not tied to any particular product
offered by Google or any Texas defendant. See e.g., Dkt. 61 at ¶ 31.
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DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

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To the extent that the Court denies transfer, Defendants alternatively request that the

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Court stay this case pending the outcome of the related Texas Action. Google is a party to one of

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the Texas cases, Google’s purported “customers” are parties to the other five Texas cases, and

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the EDTX court will be able to resolve all of the issues raised in Google’s declaratory complaint,

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as well as the additional issues unique to each Texas defendant that are not before this Court.

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Additionally, the jurisdictional concerns presented in Defendants’ Motion to Dismiss and request

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for certification for interlocutory review are not present in the Texas Action, where Defendants

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and each Texas defendant (including Google) are subject to personal jurisdiction.

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II.

LEGAL STANDARD

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“For the convenience of parties and witnesses, in the interest of justice, a district court

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may transfer any civil action to any other district or division where it might have been brought.”

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MTS Sys. Corp. v. Hy-Sitron, Inc., 2006 U.S. Dist. LEXIS 66338, at *5 (N.D. Cal. Sept. 1, 2006)

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(quoting 28 U.S.C. § 1404(a)). In addition to the three factors identified in § 1404(a), the Ninth

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Circuit provides other factors the Court may consider: ease of access to the evidence; familiarity

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of each forum with the applicable law; feasibility of consolidation of other claims; any local

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interest in the controversy; relative court congestion and time to trial in each forum; location

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where the relevant agreements were negotiated and executed; the parties’ contacts with the

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forum; difference in the costs of litigation in the two forums; and availability of compulsory

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process to compel attendance of unwilling non-party witnesses. TransPerfect Global, Inc. v.

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MotionPoint Corp., 2010 U.S. Dist. LEXIS 99947, at *4 (N.D. Cal. Sept. 13, 2010) (citing Jones

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v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000)). Another factor the Ninth

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Circuit has identified is the plaintiff’s choice of forum. Id. (citing Secs. Investor Protection Corp.

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v. Vigman, 764 F.2d 1309, 1317 (9th Cir. 1985)).

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Unlike the controlling standard for the motion to transfer venue under 28 U.S.C. § 1391

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that was raised in Defendants’ Motion to Dismiss—which required that this Court accept facts

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alleged in the complaint and resolve any conflicts in the allegations and evidence in the non-

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DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

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movant’s favor—the standard for a motion to transfer venue under 28 U.S.C. § 1404 permits

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fact-finding and does not require the Court to accept the allegations as plead by Google in its

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complaint as true. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (“A motion to

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transfer under § 1404(a) thus calls on the district court to weigh in the balance a number of case-

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specific factors.”); Hoover Grp. v. Custom Metalcraft, 84 F.3d 1408, 1410 (Fed. Cir. 1996)

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(“Venue is based on the facts alleged in the well-pleaded complaint. . . . in deciding the question

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of the defendants’ contacts with this district for venue purposes, the Court will accept as true the

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facts pleaded in plaintiffs’ complaint”) (citations omitted).

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III.

STATEMENT OF FACTS

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A.

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Nortel, Defendants, and the Patents-in-Suit. Defendants are the assignees of intellectual

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property that resulted from research and development performed by Nortel Networks Ltd.

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(Canada) and Nortel Networks Inc. (U.S.) (collectively “Nortel”). Nortel’s worldwide

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headquarters was located in Ontario, Canada, while its largest R&D facility was in Ottawa,

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Canada. Powers Decl. ¶ 8. For twenty years, the headquarters for Nortel’s U.S. entity and its

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largest U.S. facility (with approximately 10,000 employees) was in Richardson, Texas. Id. Nortel

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conducted patent prosecution and licensing activities from Richardson. Id. While Nortel

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maintained a satellite office in Santa Clara, California (that, unlike the Texas office, had no

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relation to the patents-in-suit), the Santa Clara office never served as Nortel’s “primary” U.S.

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campus. See id. ¶ 38.

Nortel and Defendants’ Longstanding Ties to the EDTX

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After confronting bankruptcy in 2009, in 2011 Nortel held an auction for its patents,

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including the patents-in-suit. In this auction, Google made an initial stalking horse bid of $900

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million. Id. ¶ 21. Google ultimately lost the auction to Rockstar Bidco LP, which paid $4.5

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billion to acquire Nortel’s patents, including the patents-in-suit. Id. Rockstar Bidco LP—a

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distinct entity from Rockstar—assigned over 1,100 of the Nortel patents directly to Apple,

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assigned some of Nortel’s other patents directly to Rockstar’s other limited partners, and

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assigned most of the remaining Nortel patents (including the patents-in-suit) to Rockstar. Id.

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Rockstar is a Delaware limited partnership. Rockstar’s limited partners are: Apple,

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BlackBerry, Ericsson, Microsoft, and Sony, each with a minority ownership percentage. See Dkt.

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22; Powers Decl. ¶ 10 (setting forth the legal name of each). Ericsson’s U.S. headquarters are

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located within the EDTX; BlackBerry is in the Dallas, Texas area, within just miles of the

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EDTX; Microsoft is in Seattle, Washington; Apple is in the Northern District of California

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(“NDCA”); and Sony is in New Jersey. See Exs. 1-2. Rockstar’s general partner is Rockstar

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Consortium LLC, a Delaware limited liability corporation. 3 Dkt. 30-4 at 11-12; Dkt. 58 at 17.

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After receiving the assignment of patents from Rockstar Bidco LP, Rockstar

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subsequently created subsidiary entities for the purpose of licensing its intellectual property in

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different markets, which generally relate to different technologies. Powers Decl. ¶ 36. Rockstar

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then assigned certain patents corresponding to different market segments and technology areas to

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those newly-created subsidiaries. Id. For example, MobileStar focuses on licensing patents

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related to mobile device technology, NetStar Technologies focuses on search engine technology,

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Bockstar Technologies focuses on technology for network and computer components, and

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Constellation Technologies focuses on technology for telecommunications service providers to

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deliver cable, telecommunications, and other multimedia services. Id. Today Rockstar owns two of

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the patents-in-suit. Id. ¶ 5. MobileStar owns five of the patents-in-suit and is the exclusive

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licensee (from Rockstar) of the other two patents, within its field of use. Id. ¶ 5. 4

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Google’s Opposition to Rockstar’s Motion to Dismiss incorrectly identified Kasim Alfahali,
Ericsson’s Chief Intellectual Property Officer, as the President of Rockstar Consortium LLC.
Dkt. 30-4 at 11-12. Google’s identification of Rockstar Consortium LLC’s officers was
incorrect. Rockstar Consortium LLC’s CEO is John Veschi. Ex. 3.

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MobileStar was not created as a “sham entity” for the purpose of venue manipulation.
MobileStar, like Rockstar, is resident in the EDTX (just like Nortel before) and both Rockstar
and MobileStar are party to the Texas Actions. Had Rockstar created MobileStar as a “sham”
entity for the purpose of evading personal jurisdiction or manipulating venue, Rockstar would
have assigned all of the patents-in-suit to MobileStar and would not have made itself a party to
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DEFENDANTS’ MOTION TO TRANSFER UNDER
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Defendants’ Roots in the EDTX. With the formation of Rockstar, which acquired the

2

patents-in-suit from Rockstar Bidco LP, Rockstar also acquired many former Nortel employees

3

responsible for licensing and prosecuting the Nortel patents, including the patents-in-suit. Powers

4

Decl. at ¶ 22. Additionally, Rockstar leased Nortel’s Richardson, Texas office space where many

5

of Nortel’s patent files were already located, including files relevant to the patents-in-suit. Id. ¶

6

31. In August 2012, after Nortel sold its Richardson campus during its bankruptcy proceedings,

7

Rockstar signed a seven-year lease for its current offices in nearby Plano, Texas, within the

8

EDTX. Id. ¶ 23. Today both Rockstar and MobileStar are headquartered out of the Plano office.

9

Id. ¶ 28. The office contains 8,125 square feet, with 10 assigned offices, 2 guest offices, 4

10

conference rooms, 7 work areas, and storage space. Id. ¶ 24. Rockstar has 15 full-time employees

11

in the U.S., including five full-time employees in Plano and others who spend significant time

12

there. Id. ¶ 25. No employees live or work in California. 5 Id. ¶ 29. Eight of Rockstar’s U.S.

13

employees have relevant information about the patents-in-suit; three of them work full-time out

14

of the Plano office, one lives in Pennsylvania, one lives in Colorado, one lives in Massachusetts,

15

one lives in North Carolina, and one lives in Florida. 6 Id. ¶ 30.

16
17
18
19
20

the Texas Actions. That Rockstar and MobileStar are both resident in the EDTX, Rockstar
maintained ownership of certain of the patents-in-suit, and Rockstar made itself a party to the
Texas Actions belies any suggestion that MobileStar’s creation constitutes some jurisdiction or
venue-driven machination. Additionally, Rockstar and MobileStar have jointly communicated
with potential licensees regarding the patents-in-suit—sending correspondence to licensees
regardless of location. See Ex. 4.
5

21
22
23
24
25
26
27

Mark Wilson was previously an independent contractor of Rockstar who resided in California.
Mr. Wilson had provided Rockstar with “licensing consulting services.” Powers Dec. ¶ 37. Mr.
Wilson never had any substantive involvement with any of the patents-in-suit or any of the Texas
defendants. Id. In addition, Mr. Wilson never had any contact whatsoever with any potential
licensees in California regarding Rockstar’s patents. Id. His contract ended on March 31, 2014,
was not renewed, and he no longer consults for Rockstar. Id.
6

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 Decl. ¶ 18. 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.
5
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B.

2

Although in 2013 Google closed its EDTX office, Google still maintains at least two

3

Texas offices, in Dallas (approximately 20 miles from the EDTX) and Austin. Exs. 5, 6.

4

Google’s Austin office focuses on developer relations and technical solutions, among other

5

issues. Ex. 5. Google’s Dallas office contains departments for design and engineering, as well as

6

sales. Ex. 6. Publicly available information suggests that Google’s Texas employees work on the

7

development of the Android platforms. Specifically, Jeff Hamilton, a software engineer on

8

Google’s Android team who specializes in “[o]perating systems development for mobile

9

devices,” lives in Austin, Texas. Ex. 24.

Google’s Connections to the Eastern District of Texas

10

C.

11

On October 31, 2013, Defendants filed lawsuits in the EDTX (the “Texas Actions”)

12

against mobile device manufacturers ASUS, HTC, Huawei, LG, Pantech, Samsung, and ZTE

13

(the “Texas defendants”) alleging infringement of the patents at issue in this case. Ex. 7. The

14

EDTX was the logical choice of forum because Defendants, along with Texas defendant

15

Samsung, are each headquartered in the EDTX (and Texas defendant ZTE is also headquartered

16

in Texas, only a few miles from the EDTX border). Exs. 8-11. Moreover, each of the Texas

17

defendants sells infringing products within the EDTX and is subject to personal jurisdiction

18

there. See, e.g., Ex. 12 at 4-5. Rather than intervene in the Texas Action, however, Google filed

19

this action. Dkt 1. On December 31, 2013, Defendants added Google as a co-defendant to the

20

Texas Action involving EDTX-headquartered defendant Samsung, and subsequently added

21

claims of infringement as to each of the patents-in-suit. Case No. 2:13-cv-00900, Dkt. 19; Ex.

22

12. As of this date, neither Google nor EDTX-based Samsung have moved to sever their joinder

23

in a single action in the EDTX. See Ex. 13.

Defendants File the Texas Actions, Google Files This Case

24
25
26
27

6
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IV.

2

THE COURT’S PERSONAL JURISDICTION DECISION SHOULD NOT
IMPACT THE TRANSFER ANALYSIS

3

The Court’s decision regarding personal jurisdiction should not impact its transfer

4

analysis. 7 The Court decided the personal jurisdiction question in the context of a motion to

5

dismiss and/or transfer venue under 28 U.S.C. § 1391. See Dkt. 58 at 5-7. Its decision was

6

therefore based on facts from Google’s complaint, and the controlling standard required

7

resolving any “conflicts in the allegations and evidence . . . in [Google’s] favor.” Id. at 5; see

8

also id. at 19 (“with conflicts in the allegations and evidence resolved in its favor, Google has

9

shown that it is likely that Defendants have created continuing obligations with a forum

10

resident…”). As a result, the Court’s personal jurisdiction decision accepted Google’s pleaded

11

allegations as true—including allegations that (as shown of the facts presented herein) are

12

demonstrably false.

13

Three examples underscore the relevant errors in Google’s pleadings which the Court

14

was bound to accept as true in deciding Defendants’ Motion to Dismiss. First, Google has

15

“allege[d] that Apple is a majority shareholder of Defendants. . . .” Dkt. 58 at 17. Apple is not a

16

majority shareholder of Defendants. Powers Dec. ¶ 35; see also Ex. 14 (article cited by Google

17

and the Court referring to each Rockstar limited partner, including Apple, as a “minority”

18

owner). 8 Second, Google “allege[d] that Rockstar created MobileStar solely to dodge

19

jurisdiction. . . .” Dkt. 58 at 10. But the sworn facts, contrary to Google’s unsupported pleadings,

20

show that Rockstar formed MobileStar to function as its mobile device licensing entity, resident

21
22
23
24
25
26
27

7

Nor should the Court’s denial of Rockstar’s Motion to Dismiss under 12(b)(2) and 12(b)(3)
control here. Rockstar’s Motion to Dismiss was based on the application of the first-to-file rule
and the Court’s discretionary power to entertain this declaratory action. Dkt. 19-4 at 17-23. Contrary
to Google’s contention, Defendants have not yet filed a motion to transfer venue under 28 U.S.C.
§ 1404(a) on the basis of forum non conveniens under § 1404(a). Dkt. 39-4 at 15.
8

Rockstar is a Delaware limited partnership comprised of partners, not shareholders. Powers
Decl. ¶ 10. Rockstar’s limited partners each hold a minority ownership percentage. Id.
Rockstar’s general partner is Rockstar Consortium LLC, a Delaware limited liability corporation.
Dkt. 58 at 17.
7
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in the EDTX together with Rockstar. Powers Dec. ¶ 36. As explained above, Rockstar creates

2

different legitimate business entities to license its intellectual property in different market and

3

technology areas, including NetStar Technologies, Bockstar Technologies, and Constellation

4

Technologies. Powers Dec. ¶ 34. Third, “Google allege[d] that Apple . . . exerts substantial

5

control over [Defendants], and as a result Defendants are obliged to act on Apple’s behalf in a

6

campaign to attack Google’s Android platform.” Dkt. 58 at 17. But the facts, contrary to

7

Google’s allegations, show that Apple does not control Rockstar’s litigation decisions, and that

8

Rockstar consists of five minority limited partners of which Apple is only one. Powers Dec. ¶ 33.

9

Rockstar has “an arm’s length relationship” with its minority limited partners, including Apple.

10

Ex. 14 at 66. 9 Unlike in the personal jurisdiction context—where the Court was required to

11

accept Google’s pleaded “facts” as true—the Court now has the benefit of weighing the sworn

12

evidence before it. Stewart, 487 U.S. at 29.

13

V.

THE SECTION 1404 FACTORS WEIGH HEAVILY IN FAVOR OF TRANSFER

14

This action “might have been brought” in the EDTX because there is no dispute that

15

Defendants are subject to personal jurisdiction there. See 28 U.S.C. § 1404(a). In contrast,

16

Defendants contest personal jurisdiction here (a question which the Court has resolved against

17

Defendants). See Dkt. 58; Dkt. 66. Accordingly, the analysis will turn on the private and public

18

interest factors. While a number of the factors weigh heavily in favor of transfer, ultimately

19

consideration of efficient use of judicial resources should weigh dispositively in favor of transfer

20

to the EDTX.

21

A.

22

The Interests of Justice and Efficient Use of Judicial Resources Weigh
Dispositively in Favor of Transfer

23
24
25
26
27

9

Even if Apple could act to cause Rockstar to undertake certain litigation decisions, under the
Delaware limited liability partnership statute that Rockstar is organized under, a limited partner
may “act . . . [to] cause a general partner or any other person to take . . . any action” without
being found to direct or control the limited partnership. Del. Code Ann. tit. § 17-303 (2014).
8
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Here principles of judicial economy and comity weigh in favor of transfer of Google’s

2

declaratory judgment action to the EDTX. Indeed, these considerations should be determinative

3

of the transfer analysis in this case. See Cadence Design Sys. v. OEA Int’l, Inc., 2011 U.S. Dist.

4

LEXIS 106739, at *10-12 (N.D. Cal. Sept. 19, 2011) (Wilken, J.). “The Supreme Court has

5

emphasized that judicial economy should play a role in transfer matters.” In re Microsoft Corp.,

6

No. 2014-123, slip op. at 2 (Fed. Cir. May 5, 2014) (non-precedential) (citing Van Dusen v.

7

Barrack, 376 U.S. 612, 643-46 (1964)). As the Supreme Court said in Continental Grain, “[t]o

8

permit a situation in which two cases involving precisely the same issues are simultaneously

9

pending in different District Courts leads to the wastefulness of time, energy and money that §

10

1404(a) was designed to prevent.’” Continental Grain Co. v. The FBL-585, 364 U.S. 19, 26

11

(1960)). Accordingly, “courts have consistently held that judicial economy plays a paramount

12

role in trying to maintain an orderly, effective, administration of justice.” In re Vistaprint Ltd.,

13

628 F.3d 1342, 1346 (Fed. Cir. 2010); see also In re Eli Lilly & Co., 541 Fed. App’x 993, 994

14

(Fed. Cir. 2013). Indeed, “[c]onsideration of the interest of justice, which includes judicial

15

economy, may be determinative to a particular transfer motion, even if the convenience of the

16

parties and witnesses might call for a different result.” Regents of the Univ. of California v. Eli

17

Lilly & Co., 119 F.3d 1559, 1565 (Fed. Cir. 1997); see also London & Hull Mar. Ltd. v. Eagle

18

Pac. Ins. Co., 1996 U.S. Dist. LEXIS 22893, at *12-13 (N.D. Cal. Aug. 14, 1996) (Wilken, J.)

19

(“The ‘interests of justice’ consideration is the most important factor a court must consider, and

20

may be decisive in a transfer motion even when all other factors point the other way.”).

21

1.

Failure to Transfer Will Result In Waste of Judicial Resources

22

The Texas Action involving Google as a co-defendant with Samsung is one of six filed

23

by Defendants in the EDTX involving the same patents and technologies, which the EDTX has

24

already consolidated for all pretrial purposes (other than deciding the Texas defendants’

25

respective challenges to venue). Ex. 15, Case 2:13-cv-00894, Dkt. 31. At a minimum, the six

26

cases in the Texas Action will call for common information regarding claim construction, the

27

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technology of the patents-in-suit, industry information regarding operating systems for mobile

2

devices, the Nortel auction, as well as Nortel’s and Rockstar’s history and corporate structure.

3

Powers Dec. ¶ 3. If both this Court and the EDTX decline to grant the motions to stay or transfer

4

venue presently pending before them, Google and Defendants would continue to litigate

5

duplicative claims in both places, in addition to Defendants’ other claims in the EDTX against

6

each of the Texas defendants. 10 The prospect of parallel litigation is a very real specter: Google

7

has not moved to sever its case in the EDTX from the joinder with Samsung—whose

8

headquarters, witnesses, and documents are located within the EDTX.

9

Entertaining Google’s action in this Court will be a waste of judicial resources given the

10

existence of the parallel Texas Actions and the overlap in the patents and the parties (Google,

11

Rockstar, and MobileStar) between the actions. Google is a party to one of the Texas Actions,

12

each of those actions has been consolidated for pre-trial purposes, and Google can raise its

13

infringement concerns there as a counterclaim. See Proofpoint, Inc. v. InNova Patent Licensing,

14

LLC, 2011 U.S. Dist. LEXIS 120343, *22-23 (N.D. Cal. Oct. 17, 2011) (encouraging the

15

declaratory judgment plaintiff “to move to intervene in the Texas Action or bring a separate

16

action for declaratory judgment in the Eastern District of Texas and seek to relate that claim to

17

the Texas Action”). In contrast, none of the Texas defendants are party to this case, and

18

Defendants’ claims against the Texas defendants will not, for the reasons set forth below, be

19

resolved here.

20

2.

Denying Transfer Creates the Risk of Inconsistent Judgments

21

A related case involving the same parties as this case, issues, witnesses, and similar facts,

22

is pending in the EDTX. Therefore, “[i]f this case is not transferred, inconsistent judgments

23
24
25
26
27

10

More of the Texas defendants are closer to the EDTX than the NDCA. See Budwin Dec. ¶ 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).
10
DEFENDANTS’ MOTION TO TRANSFER UNDER
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1

could result, which could work an injustice.” London & Hull Mar. Ltd. v. Eagle Pac. Ins. Co.,

2

1996 U.S. Dist. LEXIS 22893, at *12-13 (N.D. Cal. Aug. 14, 1996) (Wilken, J.). Under these

3

circumstances, judicial economy mandates that this case be transferred to the EDTX. See id.

4

3.

The Texas Actions Can Resolve “Major Issues” Not Before This Court

5

The EDTX may properly resolve all of the issues raised by Defendants and the Texas

6

defendants (including Google). In contrast, even if the EDTX court were to grant a stay of the

7

Texas Actions, this Court cannot resolve the “major issues” of infringement, invalidity, and

8

damages raised in the Texas Actions. Spread Spectrum Screening LLC v. Eastman Kodak Co.,

9

657 F.3d 1349, 1358 (Fed. Cir. 2011); Dkt. 65 at 3 (articulating Google’s position that “whether

10

the results of this action will bind parties to Rockstar’s Halloween actions in the Eastern District

11

of Texas . . . [is] not before this Court”). Accordingly, judicial economy dictates that the EDTX

12

should resolve Defendants’ claims against Google and the Texas defendants.

13

First and foremost, none of the Texas defendants have agreed to be bound by the

14

resolution of this case (i.e. infringement). See, e.g., Kahn v. Gen. Motors Corp., 889 F.2d 1078,

15

1082 (Fed. Cir. 1989) (noting that GM had “not agreed to be bound by the Illinois decision or

16

any injunction against Motorola”); Pragmatus, 2012 U.S. Dist. LEXIS 189149, at *8 (observing

17

that “it appears there is still some indecision regarding agreements to be bound by the Google”).

18

Nor would any Texas defendant agree to be bound by the infringement determinations in this

19

case—because each Texas defendant’s accused products reflect differences that are material to

20

adjudicating infringement. Each of the accused devices in each of the Texas Actions are

21

independently designed, manufactured, and imported into the U.S. by each Texas defendant.

22

While the accused products use a version of the “Android” operating system, Android is only

23

one part of the infringing devices and is an open-source software project with many non-Google

24

contributors. Ex. 16; Ex. 17 at ¶ 4. Each of the Texas defendants develops and contributes to the

25

source code to create its own, unique version of the Android code that is used in the products

26

accused of infringement in the Texas actions. See Exs. 18-23, 25-26.

27

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DEFENDANTS’ MOTION TO TRANSFER UNDER
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The Texas defendants do not use Android in the form that it “originates from Google.”

2

See, e.g., Exs. 18-20. Defendants’ infringement contentions (created without the benefit of

3

discovery and served after this Court’s ruling on Defendants’ Motion to Dismiss) reveal

4

considerable differences between each Texas defendants’ implementation of Android in their

5

accused products suggesting that each Texas defendant individually customizes Android for use

6

in its accused products—and that those changes are material to the infringement allegations in

7

the Texas Actions. See, e.g., Exs. 21, 28-29; see also Ex. 22. Thus, none of the Texas defendants

8

have conceded that they make use of Android or the “Android platform” (the term used in

9

Google’s Complaint) as that open-source software project is managed by Google, without

10

making modifications material to Defendants’ infringement claims in the Texas Actions. Indeed,

11

many of the Texas defendants openly admit that they modify the open-source Android code and

12

employ many people who have the sole job of modifying the open-source Android code for use

13

in defendant-specific products. 11 See, e.g., Exs. 23-26; see also Ex. 27, Mycone Dental Supply

14

Co. v. Creative Nail Design, Inc., No. C 12-747, Dkt. 52 at 5 (N.D. Cal. May 30, 2012)

15

(declining to find that claims against third-party “customers” would be “largely resolved” by

16

claims against party-manufacturer where “there is at least some indication that the third-party

17

defendants may alter the products they purchase from [manufacturer] before reselling them to

18

consumers or retailers”).

19

Google understands the reality that its so-called “customers” in the Texas Action

20

independently modify the Android code to suit their own needs, and has sought to downplay its

21

importance before the Court. In the Joint Case Management Statement, Google takes the position

22

that “questions regarding whether the results of this action will bind parties to Rockstar’s

23

Halloween actions in the Eastern District of Texas . . . are not before this Court.” Dkt. 65 at 3.

24
25
26
27

11

Samsung’s employment of many “Android” engineers, including those located at its EDTX
headquarters, suggests the scope and importance of its work to customize Android for its own
needs. See Ex. 25. Indeed, Samsung’s extensive modifications to the open-source Android code
has been an ongoing source of contention between Google and Samsung. Ex. 26.
12
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Google also refused to ask this Court to require Google to explain whether Google’s complaint

2

has sufficiently identified the “Android Platform” or to identify any specific product using the

3

“Android Platform.” Id. at 4. This is an implicit admission that Google does not have access to

4

the Android code used by each Texas defendant because each Texas defendant has its own

5

unique source code and hardware configurations that are not supplied by Google, or shared by

6

the Texas defendants with Google.

7

Absent each Texas defendant agreeing to be bound by this Court’s determination of

8

infringement, each Texas defendant being added to as a party to this case, or Google’s ability to

9

produce the code and hardware used by each Texas defendant’s accused products for an

10

infringement adjudication by this Court, there is no reason to believe that resolution of this case

11

will resolve any of the infringement issues related to any of the Texas defendants other than

12

Google. Pragmatus, 2012 U.S. Dist. LEXIS 189149, at *8. 12

13

Second, this case cannot resolve the major, hardware-specific issues raised by Rockstar’s

14

infringement claims against the Texas defendants. While the devices accused of infringement in

15

the Texas Action each run different versions of the Android operating system, the Texas Action

16

is not about Android. Of the seven patents at-issue in this case and the Texas Action, none is

17

alleged by Defendants, Google, or the Texas defendants to read solely on functions or features

18

found in Android software. See, e.g., Dkt. 1; Exs. 12, 28-29. As recognized by this Court, at least

19

the ’551 Patent is hardware specific with no tie to Android whatsoever alleged by any party. See

20
21
22
23
24
25
26
27

12

Google represented in its Complaint and in its Opposition to Defendants’ Motion to Dismiss
that its Declaratory Complaint was proper because Defendants were suing its customers in Texas
and that its Declaratory Complaint was first filed under the “manufacturer-customer” exception
to the first-to-file rule. See e.g. dkt. 1 at 1 (Defendants have “filed seven lawsuits claiming that
Google’s customers infringe . . .”); dkt. 30-4 at 20 (Defendants have “sue[d] Google’s customers,
the Android manufacturers named in the Halloween actions”); see also dkt. 58 at 24 (Court
finding “the relationship between Google and the Halloween defendants is one of manufacturer
and customer.”). If this case is truly a “manufacturer-customer lawsuit” then Google as the
“manufacturer” should have access to the “Android” code used by its “customers” that forms the
basis for its Declaratory Complaint of non-infringement before this Court—Google should have
this information without having to join those “customers” to this case.
13
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Dkt. 58 at 22 n.10; Exs. 28-29. 13 As to the other six patents at-issue, each covers the combination

2

of hardware (designed solely by the Texas defendants and not Google) with software. These

3

patents require “sending,” 14 “receiving,” 15 “displaying,” 16 and “storing” 17—functionality that

4

occurs within the Texas defendant-specific hardware. 18

5

Third, Google has not pled invalidity of any of the patents-in-suit this case, whereas each

6

of the Texas defendants will almost certainly file invalidity defenses and counterclaims. Even if

7

Google adds invalidity claims to this case, no Texas defendant has agreed to be bound by the

8

validity determination in this case nor has any Texas defendant agreed to be estopped from

9

making any invalidity arguments that it or Google could have made before this Court.

10

Fourth, even if resolution of the claims against Google would resolve the issues of

11

infringement and invalidity related to the Texas defendants and their unique products (which it

12

would not), it would not resolve any of the Texas defendant-specific damages issues. 19 As

13
14
15
16

13

Rockstar has attached selected examples of the 181 infringement contention claim charts and
teardowns that it separately prepared for each product accused of infringing the ’551 patent in
the Texas Action. See Exs. 28-29. Should the Court wish to review some or all of the additional
infringement contentions for the ’551 patent to confirm that they all relate solely to hardware,
Rockstar would be happy to file them or serve courtesy copies on chambers.

17

14

18

15

19
20
21
22
23
24

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

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.
16

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.

17

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

18

See Cadence Design Sys.., 2011 U.S. Dist. LEXIS 106739, at *6 (citing Microsoft Corp. v.
Commonwealth Sci. & Indus. Res. Org., 2007 U.S. Dist. LEXIS 91550, at *10 (E.D. Tex. Dec.
13, 2007)) (the customer-suit exception is “inapplicable when a manufacturer makes but a
component of an end product, where the end product is accused of infringement.”).
19

25
26
27

“Damages is no less a core issue in a patent infringement case than the issues of infringement
and validity.” Secure Axcess, LLC v. Nintendo of Am., Inc., 2014 U.S. Dist. LEXIS 30115, at *21
(E.D. Tex. Mar. 7, 2014) (Gilstrap, J.). See also Nat'l Broom Co. of Cal. v. Brookstone Co., 2009
U.S. Dist. LEXIS 69630, at *8-9 (N.D. Cal. July 30, 2009) (ellipsis in original) (citing Codex
Corp. v. Milgo Elec. Corp., 553 F. 2d 735, 738 n.6 (Fed. Cir. 1977)) (“[t]here may be situations,
14
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required by the Federal Circuit, Defendants’ damages model against each Texas defendant will

2

necessarily be distinct, grounded in the specific facts relating to each defendant and based on an

3

individualized analysis of the sales of the different accused products. See Uniloc USA, Inc. v.

4

Microsoft Corp., 632 F.3d 1292, 1317-18 (Fed. Cir. 2011). Here, “as to the issue of damages, the

5

claims against [the Texas defendants] are not peripheral to those of” Google. Secure Axcess,

6

2014 U.S. Dist. LEXIS 30115, at *21. As with Google’s apparent inability to provide the code

7

and schematics used by its purported “customers” in the Texas Action, Google has also refused

8

to agree to provide damages information related to the products accused of infringement in the

9

EDTX—implicitly confirming that it lacks access to such information. Budwin Dec. ¶ 7.

10

Finally, there is no dispute that Defendants and each Texas defendant are subject to

11

personal jurisdiction in the EDTX. See, e.g., Dkt. 9 ¶¶ 5-7. Defendants respectfully contest the

12

Court’s order denying its Motion to Dismiss and Defendants have asked the Court to certify the

13

issue for review. Dkt. 66.

14

B.

15

If there is any indication that a plaintiff is forum shopping, its choice of forum will be

16

given little deference. JACO Envtl. Inc. v. Appliance Recycling Ctrs. of Am., 2007 U.S. Dist.

17

LEXIS 27421, at *7 (N.D. Cal. Mar. 27, 2007). In light of the fact that Defendants filed the

18

Texas Actions nearly two months before Google filed this action and that Google could have

19

intervened in the Texas Actions, Google’s declaratory judgment action can only be viewed as an

20

attempt at forum shopping. Google “does not argue that its declaratory judgment claim could not

21

have been brought in the Eastern District of Texas.” Cadence Design Sys., 2011 U.S. Dist.

22

LEXIS 106739, at *10-12. Yet instead of intervening in the previously-pending Texas Actions to

23

protect the interests of its alleged customers, Google first invited Rockstar to a meeting in

Google’s Choice of this Forum Amounts to Forum Shopping

24
25
26
27

due to the prospects of recovery of damages or other reasons, in which the patentee has a special
interest in proceeding against a customer itself, … and therefore, less weight should be given to
the manufacturer’s forum.”).
15
DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

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1

California, which Rockstar and MobileStar accepted in good faith, and then six days later Google

2

filed this case—using that meeting as a basis for venue and jurisdiction. Dkt. 19-6 at ¶ 12-13.

3

Rather than filing this declaratory judgment action in the NDCA, there is no dispute that

4

Google could have moved to intervene in the Texas Actions. Encouraging such venue

5

gamesmanship by Google would set a disturbing precedent—conduct that has been “knowingly

6

undertaken to manipulate venue in this case . . . should not be rewarded.” MobileMedia Ideas

7

LLC v. HTC Corp., 2012 U.S. Dist. LEXIS 62153, at *8 (E.D. Tex. May 3, 2012). It would also

8

chill extra-judicial meetings between parties who may have adverse legal interests, as parties will

9

be afraid to meet without unintended consequences related to venue or jurisdiction.

10

C.

11

It would be inconvenient for Defendants to litigate this matter in this District.

12

Defendants’ only office is located in Plano, Texas. Powers Dec. ¶ 23; see Transperfect, 2010

13

U.S. Dist. LEXIS 99947, *7. Defendants have no ties to the NDCA. Rockstar employees with

14

relevant knowledge live and work in the EDTX. The EDTX is also more convenient for those

15

employees who are home-based (primarily on the East Coast) and regularly commute to Plano.

16

Fako Dec. ¶ 4; Veschi ¶ 2; McColgan ¶ 3. Rockstar employees with relevant knowledge include

17

Donald Powers, who works full-time in the Plano headquarters and has material information

18

related to this suit, including knowledge of Nortel and Rockstar’s corporate organization and

19

structure, documents investigated for purposes of this suit, and employees and other parties with

20

knowledge about the patents-in-suit. Powers Decl. ¶¶ 1-3, 30. Bernard Tiegerman, Rockstar’s

21

Senior Patent Counsel, and formerly Nortel’s licensing counsel, possesses material information

22

related to Defendants’ licensing efforts and was involved in the prosecution of U.S. Patent No.

23

6,463,131. Tiegerman Decl. ¶¶ 3-4. Mr. Tiegerman works full-time out of Rockstar’s Plano,

24

Texas headquarters and lives in Dallas. Id. Erik Fako is Rockstar’s Senior Patent Counsel for

25

Assertion and Litigation and was formerly Nortel’s in-house prosecution counsel involved in the

26

prosecution of U.S. Patent No. 6,128,298. Fako Decl. ¶¶ 3-4. Mr. Fako routinely works out of

Convenience of The Parties and Party Witnesses Favors Transfer

27

16
DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

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Rockstar’s Plano, Texas headquarters. Id. Mark Hearn is currently Senior Licensing Counsel for

2

Rockstar and for over 13 years was Senior Licensing counsel for Nortel (in its Richardson, Texas

3

office). Hearn Decl. ¶ 1. He currently works full-time out of Rockstar’s Plano, Texas office and

4

lives in Dallas. Id.; see also McColgan Decl. and Veschi Decl.

5

D.

6

The most important non-party witnesses will likely be located in the EDTX, on the East

7

Convenience of Non-Party Witnesses Favors Transfer

Coast, or in Canada. On balance, this factor cuts decisively in favor of transfer. 20

8

Prior Artists. The hundreds of inventors on the prior art patents cited by the patents-in-

9

suit are scattered throughout the world, including at least 12 in Texas, 91 on the East Coast, and

10

24 outside the U.S. Budwin Decl. ¶ 4. Of the prior art inventors residing in Texas, three appear to

11

reside in the Dallas area—within the subpoena power of the EDTX court. Id. And importantly,

12

inventors of prior art rarely, if ever, actually testify at trial, and therefore it is more important to

13

examine other categories of witnesses. 21

14

Rockstar Limited Partners and Nortel Bidders Will Be Irrelevant. Rockstar’s limited

15

partners do not direct or control Rockstar’s licensing efforts, nor does any limited partner have a

16

majority stake in Rockstar. Powers Dec. ¶¶ 34-35; see also Ex. 14 (each of Rockstar’s limited

17

partners act at “arm’s length” and each limited partner, including Apple, owns a “minority”

18

stake). Any focus on Apple as a non-party witness is inapposite because the parties do not

19

dispute the amounts of the bids placed for the Nortel patent portfolio. In addition, any

20

unidentified “witnesses from Apple” warrant no weight in the § 1404 analysis because such

21
22
23
24
25

20

The convenience of witnesses includes “a separate but related concern, the availability of
compulsory process to bring unwilling witnesses live before the jury.” Transperfect, 2010 U.S.
Dist. LEXIS 99947, *8. See also Applied Elastomerics, 2006 U.S. Dist. LEXIS 75339, at *16
(noting that “live testimony is preferable to depositions” and that “transfer of this action would
allow for live testimony of important witnesses.”) (citing Geo. F. Martin Co. v. Royal Ins. Co. of
Am., 2004 U.S. Dist. LEXIS 8927, at *3 (N.D. Cal. May 14, 2004)).
21

26
27

Synopsys Inc. v. Mentor Graphics Corp., 2013 U.S. Dist. LEXIS 48544, at *15 (N.D. Cal. Apr.
3, 2013) (explaining that it “it appears unlikely [prior art] witnesses would be needed, even if a
claim of invalidity is based on any such prior art.”).
17
DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

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1

assertions lack the required level of specificity. 22 However, to the extent that testimony from

2

Apple is relevant, testimony from the other Nortel bidders (such as Google) 23 and other Rockstar

3

limited partners would be equally relevant. Rockstar has two limited partners in Texas: Ericsson

4

in the EDTX and BlackBerry in the Dallas area, just a few miles from the EDTX. Exs. 1, 2.

5

Inventors Across the Country. The majority of the inventors of the patents-in-suit reside

6

in Canada or the East Coast (New York, Massachusetts, New Hampshire, North Carolina).

7

Budwin Decl. ¶ 3-5. Five named inventors of the patents-in-suit (two from Canada and subject to

8

the Hague Convention) have agreed to travel to EDTX to provide testimony. 24 See Wooten

9

Decl., Colvin Decl., Poisson Decl., St. George Decl., and Egan Decl. Each has declared that the

10

EDTX is a more convenient forum than the NDCA. Id. None have agreed to travel to the NDCA

11

to provide testimony, and none have agreed the NDCA is more convenient. Id.

12

Prosecuting Attorneys. The attorneys who prosecuted the patents-in-suit are likely to

13

have material information related to this case. 25 In addition to the prosecuting attorneys presently

14

employed by Rockstar, two of the third-party attorneys responsible for prosecuting the patents-

15

in-suit also live and work in Texas (one in Richardson, within the EDTX), three live in North

16

Carolina, one lives in New Jersey, and none live in California. Budwin Decl. ¶ 6.

17

Former Nortel Employees. Several third-party former Nortel employees who possess

18

material information reside in or near the EDTX. Art Fisher, Nortel’s VP for IP Law from 1998–

19
22

20
21
22
23
24
25
26
27

See Natural Wellness Ctrs. of Am., Inc. v. Golden Health Prods., 2013 U.S. Dist. LEXIS 8658,
at *16 (N.D. Cal. Jan. 22, 2013) (Wilkens, J.) (denying transfer where while Defendants “fail[ed]
to explain adequately how these [non-party] witnesses’ testimony is material to this dispute.”);
see also Wi-Lan Inc. v. HTC Corp., 2013 U.S. Dist. LEXIS 99635, at *30 (E.D. Tex. July 17,
2013) (“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.”).
23

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. Ex. 35.
24

Synopsys Inc., 2013 U.S. Dist. LEXIS 48544, at *14.

25

See In re Acer Am. Corp., 626 F.3d 1252, 1255 (Fed. Cir. 2010) (prosecuting attorneys are
likely witnesses).
18
DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

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2004, resides in the Dallas area. Powers Decl. ¶ 33. Rich Weiss served as Nortel’s Deputy IP

2

Counsel from 1997–2008 and works in McKinney, in the EDTX. Id. Mr. Fisher and Mr. Weiss

3

possess knowledge related to Nortel’s licensing practices and policies during the years of their

4

employment, which may in turn relate to the damages issues in this case. Id. No relevant former

5

Nortel employee has been shown to reside within the NDCA.

6

E.

7

While the bulk of documents generally reside with the infringers, that evidence “cannot

8

be the sole focus of this Court’s venue analysis.” Virtualagility, Inc. v. Salesforce.com, Inc., 2014

9

U.S. Dist. LEXIS 12015, at *12 (E.D. Tex. Jan. 31, 2014); see also Panavision Int’l L.P v.

10

Toeppen, 141 F.3d 1315, 1323 (9th Cir. 1998). 26 The location of Defendants’ and non-parties’

11

evidence weighs against transfer. Documents related to the patents-in-suit are stored at

12

Defendants’ Plano, Texas headquarters within the EDTX. Powers Decl. ¶ 31. Relevant

13

documents in Plano also include historical Nortel files relating to patent licenses, patent licensing

14

efforts, and payment of royalties. Id. Many of the documents concerning licensing and

15

monetization of the patents-in-suit have resided in or near the EDTX since their time of creation

16

in the Nortel era. Hearn Decl. ¶ 6.

Ease of Access To Evidence Weighs in Favor of Transfer

17

Courts also routinely look to non-parties’ documents. Mts Sys., 2006 U.S. Dist. LEXIS

18

66338, at *7. Here those may include documents from the non-party inventors who reside

19

outside of California; the patents-in-suits’ prosecuting attorneys who reside in Richardson and

20

Irving, Texas; the Texas defendants, including EDTX-headquartered Samsung, and ZTE, which

21

is headquartered only a few miles from the EDTX. See Budwin Dec. at ¶ 2; Powers Dec. at ¶ 30.

22

F.

Feasibility of Consolidation Favors Transfer

23
24
25
26
27

26

See also Silverlit Toys Manufactory, LTD. v. Absolute Toy Mktg., 2007 U.S. Dist. LEXIS
14538, at *31 (N.D. Cal. Feb. 15, 2007) (finding ease of access to evidence to weigh in favor of
transfer because “the location of the evidence and witnesses . . . is no longer weighed heavily
given the modern advances in communication and transportation.”) (citing Panavision Int’l L.P.
v. Toeppen, 141 F.3d 1316, 1323 (9th Cir. 1998)).
19
DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

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1

“The feasibility of consolidation is a significant factor in a transfer decision, although

2

even the pendency of an action in another district is important because of the positive effects it

3

might have in possible consolidation of discovery and convenience to witnesses and parties.”

4

Bite Tech, Inc. v. X2 Impact, Inc., 2013 U.S. Dist. LEXIS 31791, at *16 (N.D. Cal. March 7,

5

2013) (quoting A.J. Indus., Inc. v. U.S. Dist. Court for C.D. Cal., 503 F.2d 384, 389 (9th Cir.

6

1974)). This case and Defendants’ case against Google in the EDTX involve wholly overlapping

7

issues as to infringement and damages, including whether and to what extent Google’s products

8

(including the Nexus 5, Nexus 7 and Nexus 10) infringe one or more claims of the patents-in-

9

suit. (Defendants contest Google’s identification of the “Android Platform.”) Each of the claims

10

in this case could be raised by Google as a defense in the Texas Action.

11

Defendants’ claims of infringement against Google are pending in the EDTX. There the

12

same infringement issues raised here as to Google’s products are at issue, as well as the

13

infringement claims brought by Rockstar against five other defendants. “Under such

14

circumstances, it is more than simply ‘feasible’ that the Texas action and the instant action could

15

be consolidated if they were pending in the same district; rather, such consolidation is highly

16

likely.” CoxCom, Inc. v. Hybrid Patents, Inc., 2007 U.S. Dist. LEXIS 67168, at 5 (N.D. Cal.

17

Aug. 30, 2007). These cases may be consolidated—indeed Google and EDTX-based Samsung

18

are co-defendants in one action and that action has been consolidated with each of the other

19

Texas Actions for all pre-trial purposes (with the exception of venue). See id.; see also GLT

20

Technovations, LLC v. Fownes Bros. & Co., Inc. 2012 U.S. Dist. LEXIS 56028, at *17 (N.D.

21

Cal. April 20, 2012) (considering that “transfer will allow for better coordination with the action

22

currently pending in New York, which involves substantially the same subject matter and

23

parties” and granting transfer).

24

G.

25

Defendants’ principal place of business is in Plano, Texas, in the EDTX. The Plano office

26

is a fully operational office with full-time employees doing substantial patent prosecution,

Rockstar’s Meaningful, Longstanding Connections to the EDTX

27

20
DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

28
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13-cv-5933-CW

1

licensing, and litigation support work. 27 Powers Decl. at ¶ 26. For over a decade, Nortel had

2

more than 10,000 employees in Texas, including those persons responsible for prosecuting

3

patents and running programs to monetize patents (including the patents-in-suit) out of

4

Richardson, Texas, less than a mile from the EDTX. Today, Rockstar employs five full-time

5

employees in its Plano office, including three patent attorneys and an office administrator. Id. ¶

6

25. Rockstar’s licensing and litigation activities conducted in the Plano office are within

7

Rockstar’s normal course of business, and track Nortel’s prior Texas-based activities. Id.¶¶ 26,

8

27. Additionally, Rockstar’s in-person board meetings are held at the Plano office, as are its

9

quarterly operations reviews and its annual strategy sessions. Id. ¶ 23. Like Nortel before it,

10

Rockstar conducts its ordinary patent prosecution and monetization business out of Texas.

11

H.

Local Interest Is, At The Very Least, Neutral

12

“Local interest arises when a district is home to a party because the suit may call into

13

question the reputation of individuals that work in the community.” In re Hoffman-La Roche,

14

587 F.3d 1333, 1336 (Fed. Cir. 2009). Defendants run their business from the EDTX. Powers

15

Decl. ¶ 26. In addition, the patents-in-suit are the result of Nortel’s research, and Nortel’s long-

16

standing U.S. headquarters was in Richardson, Texas. Id. Thus, this factor either favors transfer

17

to the EDTX or is neutral. 28

18
19
27

20
21
22
23
24
25

Rockstar’s meaningful ties to the EDTX are a far cry from the type of presence that courts
consider ephemeral or an artifact of litigation. 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 . . .”).
Unlike the venue manipulation facts of In re Zimmer and In re Microsoft, here Rockstar’s
licensing and patent prosecution employees in the EDTX are the successors to Nortel’s longstanding Texas-based patent prosecution and licensing business. Like Nortel before it, Rockstar
conducts its ordinary business out of Texas. Powers Decl. ¶ 26-37; see In re Microsoft Corp., 630
F.3d 1361, 1364-65 (Fed. Cir. 2011); In re Zimmer, 609 F.3d at 1381.
28

26
27

See Applied Elastomerics, Inc. v. Z-Man Fishing Prods., 2006 U.S. Dist. LEXIS 75339, at *1819 (N.D. Cal. Oct. 6, 2006) (Wilkens, J.); GLT Technovations, LLC v. Fownes Bros. & Co., 2012
U.S. Dist. LEXIS 56028, at *18-19 (N.D. Cal. Apr. 20, 2012).
21
DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

28
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13-cv-5933-CW

1

I.

Relative Court Congestion and Time to Trial Somewhat Favor Transfer

2

The median time to trial for patent cases in this District is 2.72 years. Ex. 31; see also

3

Ex. 32, Contentguard Holdings, Inc., v. Google, Inc., No. 2:14-cv-00061-JRG, Dkt. 38 at 11

4

(E.D. Tex. Apr. 16, 2014). In contrast, the median time to trial in the EDTX is only 2.19 years.

5

Id. The Texas Actions have been set for trial in July 2015—just over sixteen months from now,

6

less than two years from their October 31, 2013 filing. Ex. 33. Thus, this factor favors transfer.

7

J.

8

Litigating this case in the EDTX will be substantially less expensive than in the NDCA.

9

First, the cost savings afforded by judicial economy alone weigh heavily in favor of transfer.

10

This District has recognized that “[w]ith respect to . . . the difference in the costs of litigation in

11

the two forums, logic and experience dictate that litigating two cases in the same forum, whether

12

or not they are ultimately consolidated, will generally entail less expense than litigating two

13

separate cases in widely separated forums.” Sorensen v. Phillips Plastics Corp., 2008 U.S. Dist.

14

LEXIS 81710, at *13 (N.D. Cal. Oct. 9, 2008). As discussed above, six cases regarding

15

infringement of the same patents-in-suit remain pending before Judge Gilstrap in the EDTX. Ex.

16

7 . It will be substantially less expensive for the EDTX to adjudicate Google’s already-pending

17

claims there than for both courts to proceed with duplicative, two-track parallel litigation of

18

overlapping issues. Sorensen, 2008 U.S. Dist. LEXIS 81710, at *13. Second, regardless of where

19

the trial is held, both parties will likely require witnesses to travel. See, e.g., Ex. 35. “[O]nce such

20

travel occurs, the other costs incurred by foreign and out-of-state witnesses (e.g. food and

21

lodging) are substantially less expensive in Marshall, Texas as opposed to San Francisco,

22

California.” Mears Techs., Inc. v. Finisar Corp., 2014 U.S. Dist. LEXIS 56880, at *10 (E.D.

23

Tex. Apr. 24, 2014). Third, any travel required will be less burdensome on Google than on

24

Rockstar, as Google is a “large and sophisticated compan[y], quite accustomed to operating - and

25

litigating - all around the country, including in the E.D. Tex.” Cisco Sys. v. TiVo, Inc., 2012 U.S.

26

Dist. LEXIS 112923, at *22 (N.D. Cal. Aug. 10, 2012). Thus, this factor favors transfer.

Difference in the Costs of Litigation Favor the EDTX

27

22
DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

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13-cv-5933-CW

1

K.

2

Both this Court and the EDTX are well versed in patent law. Thus, this factor is neutral.

3

VI.

4

Familiarity With Applicable Law Factor Is Neutral

IN THE ALTERNATIVE, THE COURT SHOULD STAY THIS ACTION
PENDING RESOLUTION OF THE TEXAS ACTION

5

The Texas Action will resolve “major issues” and will simplify this litigation, and may

6

obviate the need for it altogether. Because the Texas Action will answer many, if not all, of the

7

central questions at issue here, if the Court denies transfer then it should at least stay this case

8

and allow the Texas Action to proceed to judgment. See Ex. 34, Google, Inc. v. Contentguard

9

Holdings, Inc., No. C 14-00498 WHA, Dkt. 42 at 2 (N.D. Cal. Apr. 15, 2014) (staying Google’s

10

declaratory judgment claim in the NDCA and allowing related EDTX cases against Google’s

11

alleged “customers” to proceed in the EDTX). This Court should stay this action under its

12

inherent authority because this case is in its early stages (with a case management conference set

13

for May 14, 2014), a stay will simplify the issues, and will not prejudice Google. See Hynix

14

Semiconductor, Inc. v. Rambus, Inc., 2009 U.S. Dist. LEXIS 10939, at *15 (N.D. Cal. Feb. 3,

15

2009). “A stay may be the most efficient and fairest course when there are ‘independent

16

proceedings which bear upon the case.’” Nat'l Broom Co. of Cal., 2009 U.S. Dist. LEXIS 69630,

17

at *4-5 (citing Levya v. Certified Grocers of California, Ltd., 593 F.2d 857, 863 (9th Cir. 1979)).

18

The Texas Actions will resolve each of the infringement claims presently before this

19

Court as to Google’s devices, will resolve the infringement of the ’551 patent by each of the

20

Texas defendants, and will also resolve whether and to what extent the proprietary modifications

21

made by each Texas defendant to the open-source version of Android, together with the Texas

22

defendant-specific hardware, infringe the other six patents-in-suit in the Texas Actions. This

23

“will efficiently dispose of the infringement issues” present in this case. Ricoh Company v.

24

Aeroflex Inc., 279 F. Supp. 2d 554, 558 (D. Del. 2003); see also Leviton Mfg. Co., Inc. v.

25

Interline Brands, Inc., 2006 U.S. Dist. LEXIS 61944, at *5 (M.D. Fla. Aug. 30, 2006) (stay will

26

“preserve judicial resources, prevent duplicative expenses, and prevent the possibility of

27

23
DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

28
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13-cv-5933-CW

1

inconsistent judgments”). Therefore, in the absence of transfer of this case to the EDTX, the

2

Court should stay this case pending resolution of the Texas Action.

3

VII.

CONCLUSION

4

For the reasons discussed above, the Court should transfer this action to the EDTX or, in

5

the alternative, stay this case pending the resolution of Defendants’ claims against Google in the

6

Texas Action.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

24
DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

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1
2
3
4

Respectfully submitted,
Dated May 9, 2014.

5

By:

6
7
8
9

/s/ Joshua W. Budwin __________________
Courtland L. Reichman (SBN 268873)
MCKOOL SMITH HENNIGAN, P.C.
255 Shoreline Drive Suite 510
Redwood Shores, CA 94065
[phone]
[phone] (facsimile)
Mike McKool (Admitted Pro Hac Vice)
[e-mail]
Douglas A. Cawley (Admitted Pro Hac
Vice)
[e-mail]
Ted Stevenson III (Admitted Pro Hac Vice)
[e-mail]
David Sochia (Admitted Pro Hac Vice)
[e-mail]
McKool Smith, P.C.
300 Crescent Court Suite 1500
Dallas, TX 75201
[phone]
[phone] (facsimile)

10
11
12
13
14
15
16
17
18

Joshua W. Budwin (Admitted Pro Hac Vice)
[e-mail]
McKool Smith, P.C.
300 W. 6th Street, Suite 1700
Austin, TX 78701
[phone]
[phone] (facsimile)

19
20
21
22
23

Attorneys for Defendants
Rockstar Consortium US LP and
MobileStar Technologies LLC

24
25
26
27

25
DEFENDANTS’ MOTION TO TRANSFER UNDER
28 USC §1404(A) OR, IN THE ALTERNATIVE, TO STAY

28
985328

13-cv-5933-CW