EMG Technology, LLC v. Apple, Inc.

Filing 209

MOTION to Change Venue by Apple, Inc., American Airlines, Inc., Dell Inc., Hyatt Corporation, Marriott International, Inc., Barnes & Noble, Inc.. (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K - Part 1, # 13 Exhibit K - Part 2, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V, # 25 Exhibit W, # 26 Text of Proposed Order)(Rambin, Daymon)

EMG Technology, LLC v. Apple, Inc.

Doc. 209 Att. 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION § § Hon. Leonard Davis § Civil Action No. 6:08-CV-00447 Plaintiff, § Jury Trial Demanded § v. § § APPLE INC., § AMERICAN AIRLINES, INC., DELL, INC., § § HYATT CORPORATION, MARRIOTT INTERNATIONAL, INC., & § § BARNES & NOBLE, INC. § Defendants. EMG TECHNOLOGY, LLC, DECLARATION OF J. CHRISTOPHER CARRAWAY IN SUPPORT OF DEFENDANTS' MOTION TO TRANSFER 1. I, J. Christopher Carraway, am an attorney with Klarquist Sparkman, LLP,

counsel for Defendant Microsoft Corporation in Case No. 6:09-cv-00367, and I have been admitted pro hac vice to practice in this Court for that case. I have personal knowledge of the facts herein, and, if called as a witness, could testify competently thereto. 2. I calculated relative travel times of flying to the Eastern District of Texas and the

Central District of California ("CDCA") by accessing the popular travel website http://tickets.priceline.com/ ("Priceline.com"). I used the tools available on Priceline.com to determine overall flight times to the Eastern District of Texas and the CDCA for each of the parties and the non-party witnesses identified in the accompanying Motion to Transfer. In collecting this information, I assumed that individuals would travel between January 15 and 22, 2010 and I used the shortest travel time, regardless of cost. I also assumed that people would attempt to get to Tyler, Texas by flying into the Tyler Pounds Regional Airport ("TYR"), which is less than 10 miles from the Federal courthouse in Tyler, and that people would attempt to get -1-

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to Los Angeles, California via Los Angeles International Airport ("LAX"), less than 20 miles from the Federal courthouse in Los Angeles. My estimated travel times did not account for the time it would take to get from the airports to the courthouses. I calculated travel times for each individual and entity listed in the Motion to Transfer as a non-party witness and for each defendant in both EMG cases pending in this District, Nos. 08-cv-00447 and 09-cv-00367. 3. I calculated relative travel distances using Google Earth, an interactive mapping

application distributed by Google at http://earth.google.com/. Google Earth has a "ruler" tool that provides the straight-line distances between any two points on the map. The miles between two points vary based on what exact point is used for a starting and finishing location. Thus, there may be some minor variances (0-10 miles) in mileage based on what exact points are used. For each individual or entity listed in the Motion to Transfer as a non-party witness and for each defendant in both actions, I used the ruler tool to determine the distance between the individual or entity and (a) Tyler, Texas and (b) Los Angeles, California. 4. Attached as Exhibit A are my findings, with a summary of my results set forth in

the tables below: Identified Non-Party Witnesses Time/Distance To LAX Hours spent traveling Miles traveled 47 min 231 miles

To TYR 4 hr, 54 min 1423 miles

Net CDCA Advantage 3 hr, 7 min 1192 miles

Parties and Their Witnesses Time/Distance To LAX Hours spent traveling Miles traveled 5. 4 hrs, 24 min 1697 miles

To TYR 4 hr, 20 min 949 miles

Net CDCA Advantage (4 min) (748 miles)

Attached as Exhibit B is a true and correct copy of Plaintiff EMG Technology,

LLC's Initial Disclosures served by Plaintiff in the Case No. 08-cv-00447.

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6.

Attached as Exhibit C is a true and correct copy of the first page of U.S. Patent

No. 7,441,196 (the "'196 patent"), one of the patents in suit, listing locations within the CDCA as the residences of the named inventors and assignees. 7. Attached as Exhibit D is a true and correct copy of the first page of U.S. Patent

No. 7,020,845 (the "'845 patent"), the other patent in suit, listing locations within the CDCA as the residences of the named inventors. 8. Attached as Exhibit E is a true and correct copy of the first page of U.S. Patent

No. 6,600,497 (the "'497 patent"), the patent to which the patents in suit claim priority, listing locations within the CDCA as the residences of seven of the eight named inventors and all of the named assignees. The remaining named inventor, based on research discussed in paragraph 10 below, presently appears to reside in the CDCA as well. 9. I searched for the location of the relevant attorneys who prosecuted the patents in

suit on each attorney's firm's website. Attached as Exhibit F is a true and correct copy of the attorney profiles from the attorneys' firms, listing the location of the relevant prosecuting attorneys as follows: Attorney Thomas Ciotti Thomas M. Coester Scott Doyle John E. Gunther Jun-Youg E. Jeon Jonathan Miller Steven C. Sereboff Brennan C. Swain Location Palo Alto, CA Los Angeles, CA (CDCA) Washington, DC Westlake Village, CA (CDCA) Pasadena, CA (CDCA) Los Angeles, CA (CDCA) Westlake Village, CA (CDCA) Los Angeles, CA (CDCA)

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10.

I searched for the current locations of identified witnesses on various Internet

websites, including www.LinkedIn.com, www. Wikipedia.com, www.ZabaSearch.com, and www.Google.com, as well as the Patent Office's website and the World Intellectual Property Organization's website. Attached as Exhibit G is a true and correct copy of the Web pages and/or patents that evidence the apparent locations of these witnesses as follows: Relevance Named inventor on alleged priority patent Knowledge of development, publications, patenting, and 199798 public use of Unwired Planet Witness John Marinuzzi Openwave Systems, Inc. employees Tim Hyland Alain Rossmann Peter King Bruce Schwartz Russell Greer Mark Fox Andrew Laursen Mark Lentczner Brad Sandman Chris De Herrera Bruce Leak Stephen G. Perlman Palm, Inc. employees Art & Logic Bob Bajoras Protovu Rick Soss Angel Gulermovich Online Labs (former) employees Location Mission Viejo, CA (CDCA) Redwood City, CA Bay Area, CA Menlo Park, CA Bay Area, CA Bay Area, CA Bay Area, CA San Francisco, CA Bay Area, CA Mountain View, CA Bay Area, CA Los Angeles, CA (CDCA) Los Altos, CA Mountain View, CA Sunnyvale, CA Pasadena, CA (CDCA) Los Angeles, CA (CDCA) Foster City, CA Foster City, CA Los Angeles, CA (CDCA) Los Angeles, CA (CDCA)

Knowledge of development, publications, and 1998 public use of Windows® CE mobile channels Knowledge of development and 1998 public use of WebTV Knowledge of development and 1998 public use of Palm Web Clippings Attempted commercialization of patents in suit

11. history.

Attached as Exhibit H is a true and correct copy of the '196 patent assignment

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12. history. 13.

Attached as Exhibit I is a true and correct copy of the '497 patent assignment

Attached as Exhibit J is a true and correct copy of certain pages of the prosecution

history of the '196 and '845 patents, identifying the following attorneys involved in the prosecution of the patents in suit: Thomas Ciotti, Thomas M. Coester, Scott Doyle, John E. Gunther, Jun-Youg E. Jeon, Jonathan Miller, Steven C. Sereboff, and Brennan C. Swain. 14. Attached as Exhibit K is a true and correct copy of portions of PALM VII

ORGANIZER HANDBOOK, 3Com Corp. (1998). 15.
FOR DUMMIES

Attached as Exhibit L is a true and correct copy of portions of Brad Hill, WEBTV (IDG Books 2d ed. 1998). Attached as Exhibit M is a true and correct copy of Robert Hess, Channels: A

16.

New Spin of the Dial, SITE BUILDER NETWORK MAGAZINE, June 17, 1998 (http://msdn.microsoft.com/en-us/library/bb263940(VS.85).aspx). 17. No. 6,473,609. 18. Attached as Exhibit O is a true and correct copy of what the "Internet Archive" Attached as Exhibit N is a true and correct copy of the title page of U.S. Patent

(also called the "Wayback Machine") indicates is the January 27, 1998 version of the Web page located at www.unwiredplanet.com/alliance/contentprov.html. The full URL for this archived page is: http://web.archive.org/web/19980127134141/www.unwiredplanet.com/alliance/contentprov.html 19. Attached as Exhibit P is a true and correct copy of what the "Internet Archive"

(also called the "Wayback Machine") indicates is the January 27, 1998 version of the Web page located at www.unwiredplanet.com/tech/tech_overview.html. The full URL for this archived page is http://web.archive.org/web/19980127133957/www.unwiredplanet.com/tech/tech_overview.html

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20.

Attached as Exhibit Q is a true and correct copy of what the "Internet Archive"

(also called the "Wayback Machine") indicates is the January 27, 1998 version of the Web page located at www.unwiredplanet.com/new/press/dbc8_8_96.html. The full URL for this archived page is http://web.archive.org/web/19980127135520/www.unwiredplanet.com/new/press/dbc8_8_96.ht ml. 21. Attached as Exhibit R is a true and correct copy of portions of Jill T. and Wayne

Freeze, INTRODUCING WEBTV (Microsoft Press 1998). 22. Attached as Exhibit S is a true and correct copy of the Judicial Business of the

United States, 2008 report, Appendix C-10, Median Time Intervals from Filing to Trial for Civil Cases in Which Trials Were Completed, by District, During the 12-Month Period Ending September 30, 2008, found at http://www.uscourts.gov/judbus2008/appendices/C10Sep08.pdf. 23. Attached as Exhibit T is a true and correct copy of selected pages of the

deposition transcript of Plaintiff's principal, Elliott Gottfurcht, taken in Case No. 08-cv-00447. 24. Attached as Exhibit U is a true and correct copy of selected pages of the

deposition transcript of Grant Gottfurcht, one of the named inventors of the patents in suit, taken in Case No. 08-cv-00447. 25. Attached as Exhibit V is a true and correct copy of selected pages of the Rule

30(b)(6) deposition transcript of EMG Technology, LLC, taken in Case No. 08-cv-00447. 26. Attached as Exhibit W is a true and correct copy of pages printed from the Pocket

PC FAQ website, specifically pages found at the following addresses: http://www.pocketpcfaq.com/wce/20/mobilechannels.htm; and http://www.pocketpcfaq.com/contacts.htm. 27. Defendant Priceline.com, Inc. does not oppose the Motion to Transfer in Case No.

Case No. 09-cv-00367. 28. I declare under penalty of perjury that the foregoing statements are true. -6-

CERTIFICATE OF SERVICE I hereby certify that all counsel of record who are deemed to have consented to electronic service via the Court's CM/ECF system per Local Rule CV-5(a)(3) are being served with a true and correct copy of the above and foregoing document on this 7th day of January, 2010.

/s/ J. Christopher Carraway J. Christopher Carraway