IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

HAMMOND DEVELOPMENT 

INTERNATIONAL, INC. 

Plaintiff, 

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v. 

AMAZON.COM, INC., 

AMAZON.COM LLC, 

AMAZON.COM SERVICES, INC. 

AND 

AMAZON WEB SERVICES, INC. 

Defendants. 

CIVIL ACTION No. 6:19-cv-00355-ADA 

JURY TRIAL DEMANDED 

[LEAD CASE] 

HAMMOND DEVELOPMENT 

INTERNATIONAL, INC. 

Plaintiff, 

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v. 

GOOGLE LLC 

Defendant. 

CIVIL ACTION No. 6:19-cv-00356-ADA 

JURY TRIAL DEMANDED 

DEFENDANT GOOGLE LLC’S REPLY IN SUPPORT OF MOTION TO TRANSFER 
GOOGLE’S REPLY ISO MOT. FOR TRANSFER -1- 6:19-cv-00355-ADA

TO NDCA OR AUSTIN 

 The NDCA is the most convenient venue for this case because Google’s witnesses, 

evidence, and likely third-party witnesses are in and most accessible from the NDCA. HDI 

provides no meaningful rebuttal to this point, while conceding that neither Google nor HDI has 

ties to, witnesses in, or any evidence in Waco. See Dkt. 46. Instead, HDI (1) points to authors of 

prior art publications cited by the Asserted Patents, whom neither party presently plans to call to 

trial; (2) cites irrelevant Google job listings in Austin; and (3) asserts that the sole inventor’s former 

colleagues may be knowledgeable about the Asserted Patents’ conception even though they are 

not named inventors. Id. at 3‒4. These individuals are not key witnesses and none of them live in 

Waco. Only a few reside in Austin. Simply put, there is an “absence of witnesses within the 

plaintiff’s choice of venue.” In re Genentech, Inc., 566 F.3d 1338, 1344 (Fed. Cir. 2009). In this 

circumstance, it is improper to consider “proximity for a measure of the convenience” in lieu of 

actual ties to Waco. Id. at 1344, 1348. Thus, no weight should be given to HDI’s arguments 

regarding the proximity of Mr. Hammond and third party witnesses to Waco, as none of them 

reside in Waco. Google, by contrast, has identified over a dozen witnesses who reside in the 

NDCA and who are knowledgeable about the accused features or prior art products. See id. at 

1344‒45 (“the district court clearly erred in not determining [the convenience] factor to weigh 

substantially in favor of transfer” whereas “a substantial number of material witnesses reside 

within the transferee venue and the state of California, and no witnesses reside within the 

[transferor forum]”). This action should be transferred to the NDCA. 

I. THE NDCA IS THE MOST CONVENIENT VENUE 

A. Private Interest Factors 

i. Party Evidence ‒ There Are Numerous Witnesses In The NDCA; There Are 

None In Waco 

 The sources of proof regarding the accused functionalities in this case reside in the NDCA. 

HDI’s allegations and infringement contentions point to functionalities of Actions on Google. See 
GOOGLE’S REPLY ISO MOT. FOR TRANSFER -2- 6:19-cv-00355-ADA

TO NDCA OR AUSTIN 

Dkt. 42-3. The Lead Product Manager and software engineers who work on Actions on Google 

reside in the NDCA.1

 Khan Decl. at ¶¶ 4, 5. 

 HDI counters that its Complaint identifies other products, such as “Google Cloud” and 

“Google Home/Nest Devices.” But HDI’s infringement contentions accuse only one Google 

product – Actions on Google. Dkt. 42-3. HDI’s generic references to products in its Complaint 

(and not actual infringement allegations) does not make venue in Waco more convenient over the 

NDCA. Google Cloud refers to a network infrastructure upon which thousands of different 

services run, of which Actions on Google is one. Id.; https://cloud.google.com/docs/overview/. 

Likewise, HDI references Google Home/Nest Devices simply because they run the accused 

Actions on Google. See, e.g., Dkt. 42-3 at 3, 4. Moreover, HDI has not identified a single Google 

employee―whether for Google Cloud, Home/Nest, or otherwise―in the WDTX who possesses 

key knowledge. Instead, HDI cites a list of job listings for Google’s Austin office. Job listings are 

not sources of evidence—the Lead Product Manager and engineers who Google identified as 

having worked on the accused functionalities are. 

While Google has identified numerous relevant party witnesses in the NDCA, HDI has 

identified none in WDTX, instead identifying only one party witness (Mr. Hammond) in Dallas. 

This single out-of-district party witness cannot outweigh Google’s numerous, key NDCA 

witnesses. 

ii. Third Parties ‒ The Third-Party Witnesses Who Are Likely To Testify At 

Trial Reside In The NDCA 

Both Google and HDI identify third-party witnesses. Google identifies third-party 

 

1 HDI suggests that Google may be hiding relevant ties to the WDTX by using the phrase “most 

relevant” witnesses. However, Google’s sworn declaration states that the most significant witnesses 

are in the NDCA, while others are in New York. Khan Decl. at ¶¶ 4‒5. After a reasonable search, 

Google has identified no key witnesses in the WDTX. Khan Decl. at ¶ 6.
GOOGLE’S REPLY ISO MOT. FOR TRANSFER -3- 6:19-cv-00355-ADA

TO NDCA OR AUSTIN 

company founders, chief technology officers, and engineers in the NDCA who worked on specific, 

identified prior art products. Dkt. 42 at 2‒3. Those witnesses have non-public knowledge about 

their products’ proprietary architecture, development timeline, and public availability such as 

through commercial sales. Those witnesses’ testimony is critical to Google’s prior art defenses 

based on these prior art products, and Google would be substantially prejudiced if it could not call 

these witnesses at trial. HDI’s first two “reasons” thus fall flat. See Dkt. 46 at 7. 

HDI identifies three groups of third-party witnesses who live in Texas, none of which are 

in Waco: (1) some authors of a few of the prior art publications cited on the faces of the Asserted 

Patents, (2) individuals who may be knowledgeable about Google’s acquisition of one of those 

cited prior art patents from a company called EDS, (3) patent attorneys who prosecuted the 

Asserted Patents, and (4) Mr. Hammond’s former colleagues from InterVoice. Because none of 

these third parties are likely to be called at trial, their non-Waco Texas locations are not relevant 

to the transfer analysis. 

First, the prior art authors are unlikely to be called because HDI will certainly not call prior 

art witnesses to invalidate its own patents—it identified these authors solely because of their 

location, without any support for their relevance to invalidity. And Google does not intend to call 

these individuals at trial. Second, even if Google’s acquisition of an expired EDS patent were 

relevant enough to be an issue at trial, the members of Google’s NDCA team that handled the EDS 

patent acquisition in 2011 are the best source of that information. Third, the prosecuting attorneys 

would not be called as witnesses unless inequitable conduct issues are raised, and no inequitable 

conduct allegations have been raised in this case. Fourth, Mr. Hammond’s former InterVoice 

colleagues, none of whom are located in Waco, are not named co-inventors, and HDI asserts only 

that they “may” have knowledge of conception and reduction to practice. Tellingly, HDI does not 
GOOGLE’S REPLY ISO MOT. FOR TRANSFER -4- 6:19-cv-00355-ADA

TO NDCA OR AUSTIN 

say that they do have such knowledge or that they will be called at trial. 

Finally, HDI attempts to counter Google’s identification of third-party prior artists in the 

NDCA by asserting that deposition testimony is equivalent to live trial testimony. Dkt. 46 at 7. 

HDI’s assertion is wrong and would render the compulsory process factor a nullity. Live witness 

testimony has a greater impact on a jury than pre-recorded deposition testimony. See Aurora 

Commercial Corp. v. Lenox Fin. Mortg. Corp., No. 13-CV-0323-WJM, 2013 WL 5200231, at *4 

(D. Colo. Sept. 16, 2013) (“The impact the non-presence of the primary fact witnesses would have 

on a trial, should both parties be required to rely solely on their deposition testimony, would be 

immeasurable.”). Google should not be prejudiced by having to show pieced-together clips of 

deposition video, instead of being able to call key witnesses to testify live about how they built prior 

art products—particularly because it appears that Mr. Hammond intends to testify at trial. 

Google has identified third parties in the NDCA who are likely to provide live testimony 

at trial, and HDI fails to identify any trial witnesses in the WDTX because there are none. 

Accordingly, the private factors strongly favor transfer to the NDCA.

B. Public Interest Factors 

 HDI disputes only one public interest factor, local interest, on grounds that Google sells or 

operates the products in “virtually every available venue in the country.” Dkt. 46 at 10. But “acts 

of alleged infringement occurring within the Western District of Texas are insufficient to give rise 

to a significant local interest, since such a rationale could apply virtually to any judicial district or 

division in the United States.” Valeo, Inc. v. Fed.-Mogul Corp., No. EP-13-CV-115-PRM, 2013 

WL 8480673, at *4 (W.D. Tex. Oct. 17, 2013) (citing In re Volkswagen of Am., Inc., 545 F.3d 304, 

318 (5th Cir. 2008)) (internal quotations omitted). Instead, the local interest factor weighs in favor 

of transfer to a venue where “there are significant connections between [the] particular venue and 

the events that gave rise to [the] suit.” In re Acer Am. Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010), 
GOOGLE’S REPLY ISO MOT. FOR TRANSFER -5- 6:19-cv-00355-ADA

TO NDCA OR AUSTIN 

as amended (Jan. 13, 2011). Because the NDCA is where Google researched, designed, and 

developed the accused functionality as explained in Google’s Motion (Dkt. 42 at 2), the local 

interest factor favors transfer to the NDCA. 

II. AUSTIN DIVISION OF THE WDTX IS MORE CONVENIENT THAN WACO 

HDI’s two arguments against transfer to Austin are not supported by the law or any facts. 

First, HDI argues that Waco is closer to Dallas where Mr. Hammond and the third-party witnesses 

it listed reside. Dkt. 46 at 3-5. But it is error to consider “proximity for a measure of [] convenience” 

when none of these witnesses are in the WDTX. See In re Genentech, Inc., 566 F.3d at 1344. And, 

as explained above, it is unlikely that either party will call the third-party witnesses identified by 

HDI. The fact that Mr. Hammond would need to drive a little over an hour more to get to Austin is 

substantially outweighed by the significant increased burdens that would be imposed on all of the 

witnesses identified by Google if the case remains in Waco.2

 Second, HDI argues that travel to 

Waco from the NDCA is not significantly less convenient compared to travel to Austin but fails to 

present any facts to support this argument. In contrast, Google submitted a sworn declaration 

presenting facts showing that travel from the NDCA to Austin is more convenient, faster, and 

cheaper than travel to Waco. See Liang Decl. at ¶¶ 2‒5. 

III. CONCLUSION 

Because the witnesses with relevant knowledge about the research, design, and development 

of the accused functionalities and prior art systems are in the NDCA, and no relevant witnesses are 

in Waco, Google respectfully requests transfer to the NDCA or, alternatively, Austin. 

 

2 HDI’s reliance on RPB Safety, LLC v. Tru-Vision Plastics, Inc., No. 6:18-cv-367-ADA (W.D. Tex. 

Feb. 20, 2019) to argue that travel to Waco is not substantially less convenient than travel to Austin 

is misplaced. That case considered travel from Brenham, Texas, not from the NDCA, and did not 

consider the availability of direct flights to Austin. Further, the Court found an added hour and a 

half drive for the witnesses in that case, as would apply to Mr. Hammond, was not too burdensome.
GOOGLE’S REPLY ISO MOT. FOR TRANSFER -6- 6:19-cv-00355-ADA

TO NDCA OR AUSTIN 

Dated: November 6, 2019 /s/ Luann L. Simmons 

Luann L. Simmons 

Darin W. Snyder (Pro Hac Vice) 

dsnyder@omm.com 

Luann L. Simmons (Pro Hac Vice) 

lsimmons@omm.com 

David S. Almeling (Pro Hac Vice) 

dalmeling@omm.com 

Mark Liang (Pro Hac Vice) 

mliang@omm.com 

Amy K. Liang (Pro Hac Vice) 

aliang@omm.com 

Daniel Silverman (Pro Hac Vice) 

dsilverman@omm.com 

O’MELVENY & MYERS LLP 

Two Embarcadero Center 

28th Floor 

San Francisco, CA 94111-3823 

Telephone: 415-984-8700 

Facsimile: 415-984-8701 

Steve McConnico 

Texas State Bar No. 13450300 

smcconnico@scottdoug.com 

Paige Arnette Amstutz 

pamstutz@scottdoug.com 

Texas State Bar No. 00796136 

SCOTT, DOUGLASS & MCCONNICO, 

LLP 

303 Colorado Street, Suite 2400 

Austin, TX 78701 

Telephone: (512) 495-6300 

Facsimile: (512) 495-6399 

Attorneys for Defendant Google LLC 

 
GOOGLE’S REPLY ISO MOT. FOR TRANSFER -7- 6:19-cv-00355-ADA

TO NDCA OR AUSTIN 

CERTIFICATE OF SERVICE 

Pursuant to the Federal Rules of Civil Procedure and Local Rule CV-5, I hereby certify 

that, on November 6, 2019, all counsel of record who have appeared in this case are being served 

with a copy of the foregoing via the Court’s CM/ECF system. 

/s/ Luann L. Simmons 

Luann L. Simmons