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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC D/B/A

BRAZOS LICENSING AND 

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CIVIL ACTION 6:20-cv-00454-ADA

CIVIL ACTION 6:20-cv-00455-ADA

DEVELOPMENT, § CIVIL ACTION 6:20-cv-00456-ADA

Plaintiff, § CIVIL ACTION 6:20-cv-00457-ADA

§ CIVIL ACTION 6:20-cv-00458-ADA

 § CIVIL ACTION 6:20-cv-00459-ADA

§ CIVIL ACTION 6:20-cv-00460-ADA

v. 

MICROSOFT CORPORATION,

Defendant.

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CIVIL ACTION 6:20-cv-00461-ADA

CIVIL ACTION 6:20-cv-00462-ADA

CIVIL ACTION 6:20-cv-00463-ADA

CIVIL ACTION 6:20-cv-00464-ADA

CIVIL ACTION 6:20-cv-00465-ADA

JURY TRIAL DEMANDED

ORDER DENYING DEFENDANT MICROSOFT'S

MOTION TO TRANSFER VENUE UNDER 28 U.S.C. § 1404(a)

Came on for consideration this date is Defendant Microsoft Corporation’s Motion to 

Transfer Venue to the Austin Division of the Western District of Texas pursuant to 28 U.S.C. § 

1404(a).1

After careful consideration of the Motions, the Parties’ briefs, and the applicable law, the 

Court DENIES Defendant Microsoft’s Motion, for the reasons described below.

I. INTRODUCTION

A party seeking transfer to an allegedly more convenient forum carries a significant 

burden. Babbage Holdings, LLC v. 505 Games (U.S.), Inc., No. 2:13-CV-749, 2014 U.S. Dist. 

LEXIS 139195, at *13–14 (E.D. Tex. Oct. 1, 2014) (stating the movant has the “evidentiary 

burden” to establish that the “desired forum is clearly more convenient than the forum where the 

case was filed”). Microsoft does not contest that venue is proper in the Waco Division of the 

1Defendant Microsoft filed identical motions in each of twelve infringement actions between the Parties. Unless 

otherwise noted, cites in this order refer to the docket in Case No. 6:20-cv-00454-ADA.

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Western District of Texas. See generally, Pl.’s Resp., ECF No. 32, at 2. The burden that a 

movant must carry is not that the alternative venue is more convenient, but that it is clearly more 

convenient. In re Volkswagen, Inc., 545 F.3d 304, 314 n.10 (5th Cir. 2008) (hereinafter 

“Volkswagen II”). Microsoft moved to have this case transferred intra-district to the Austin 

Division of the Western District of Texas. This Court finds that Microsoft failed to carry its 

burden and show that the Austin Division is a clearly more convenient venue.

II. LEGAL STANDARD

Title 28 U.S.C. Section 1404(a) provides that, for the convenience of parties and 

witnesses, a district court may transfer any civil action to any other district or division where it 

might have been brought or to any district or division to which all parties have consented.

“Section 1404(a) is intended to place discretion in the district court to adjudicate motions for 

transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.’” 

Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 

U.S. 612, 622 (1964)). The moving party carries the burden of showing good cause. Volkswagen 

II, 545 F.3d at 314 (“When viewed in the context of § 1404(a), to show good cause means that a 

moving party, in order to support its claim for a transfer, must . . . clearly demonstrate that a 

transfer is ‘[f]or the convenience of parties and witnesses, in the interest of justice.’”) (quoting 

28 U.S.C. § 1404(a)).

The preliminary question under Section 1404(a) is whether a civil action “might have 

been brought” in the transfer destination venue. Volkswagen II, 545 F.3d at 312. If the 

destination venue would have been a proper venue, then “[t]he determination of ‘convenience’ 

turns on a number of public and private interest factors, none of which can be said to be of 

dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 

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2004). The private factors include: “(1) the relative ease of access to sources of proof; (2) the 

availability of compulsory process to secure the attendance of witnesses; (3) the cost of 

attendance for willing witnesses; and (4) all other practical problems that make trial of a case 

easy, expeditious and inexpensive.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) 

(hereinafter “Volkswagen I”) (citing to Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6

(1982)). The public factors include: “(1) the administrative difficulties flowing from court 

congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity 

of the forum with the law that will govern the case; and (4) the avoidance of unnecessary 

problems of conflict of laws of the application of foreign law.” Id. Courts evaluate these factors 

based on the situation which existed at the time of filing, rather than relying on hindsight 

knowledge of the defendant’s forum preference. Hoffman v. Blaski, 363 U.S. 335, 343 (1960).

A plaintiff’s choice of venue is not an independent factor in the venue transfer analysis, 

and courts must not give inordinate weight to a plaintiff’s choice of venue. Volkswagen II, 545 

F.3d at 313 (“[W]hile a plaintiff has the privilege of filing his claims in any judicial division 

appropriate under the general venue stature, § 1404(a) tempers the effects of the exercise of this 

privilege.”). However, “when the transferee venue is not clearly more convenient than the venue 

chosen by the plaintiff, the plaintiff’s choice should be respected.” Id. at 315; see also QR Spex, 

Inc. v. Motorola, Inc., 507 F. Supp. 2d 650, 664 (E.D. Tex. 2007) (describing the movant’s 

burden under Section 1404(a) as “heavy”).

III. BACKGROUND

Microsoft is incorporated in the state of Washington with its corporate headquarters 

located in Redmond, Washington. Def.’s Mot., ECF No. 31, at 5. Microsoft has operations in the 

district, but it “has no facilities or operations in the Waco Division.” Id. Conversely, Plaintiff 

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WSOU, d/b/a Brazos Licensing and Development, is a Delaware limited liability corporation

with its principal place of business in Waco, Texas, less than two blocks from the Waco Division 

Courthouse. Pl.’s Compl., ECF No. 1, at ¶ 2.

WSOU brought suit against Microsoft in twelve separate actions, filing all complaints on 

June 2, 2020. The twelve complaints allege patent infringement of twelve different United States 

patents.2 The asserted patents relate to varying technologies.

3

On October 10, 2020, Microsoft filed this motion to transfer venue under 28 U.S.C. 

§ 1404(a) in each of the twelve actions requesting that the cases be transferred intra-district to the 

Austin Division of the Western District of Texas. See Def.’s Mot. Microsoft filed the exact same 

motion in each of the twelve actions.4

IV. ANALYSIS

The threshold determination in the Section 1404 analysis is whether this case could have 

been brought in the destination venue, the Austin Division of the Western District of Texas. 

Neither party contests the fact that venue is proper in the Austin Division and that this case could 

have been brought there.

2

In Case No. 20-cv-00454, WSOU asserts U.S. Patent No. 7,366,160. In Case No. 20-cv-00455, WSOU asserts U.S. 

Patent No. 9,814,988. In Case No. 20-cv-00456, WSOU asserts U.S. Patent No. 7,676,550. In Case No. 20-cv-00457, 

WSOU asserts U.S. Patent No. 8,965,978. In Case No. 20-cv-00458, WSOU asserts U.S. Patent No. 7,388,868. In 

Case No. 20-cv-00459, WSOU asserts U.S. Patent No. 7,750,286. In Case No. 20-cv-00460, WSOU asserts U.S. 

Patent No. 8, 625,758. In Case No. 20-cv-00461, WSOU asserts U.S. Patent No. 7,106,702. In Case No. 20-cv00462, WSOU asserts U.S. Patent No. 7,106,727. In Case No. 20-cv-00463, WSOU asserts U.S. Patent No. 

8,226,241. In Case No. 20-cv-00464, WSOU asserts U.S Patent No. 7,706,519. In Case No. 20-cv-00465, WSOU 

asserts U.S. Patent No. 8,274,902.

3The asserted patents and WSOU’s claim for infringement of each of the asserted patents are discussed fully in 

WSOU’s complaints in each of the twelve actions.

4Case No. 20-cv-00454, ECF No. 31; Case No. 20-cv-00455, ECF No. 27; Case No. 20-cv-00456, ECF No. 28; 

Case No. 20-cv-00457, ECF No. 27; Case No. 20-cv-00458, ECF No. 29; Case No. 20-cv-00459, ECF No. 27; Case 

No. 20-cv-00460, ECF No. 29; Case No. 20-cv-00461, ECF No. 29; Case No. 20-cv-00462, ECF No. 29; Case No. 

20-cv-00463, ECF No. 27; Case No. 20-cv-00464, ECF No. 29; Case No. 20-cv-00465, ECF No. 29.

Case 6:20-cv-00464-ADA Document 65 Filed 04/08/21 Page 4 of 12
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A. The Private Interest Factors Weigh Against Transfer.

i. The Relative Ease of Access to Sources of Proof

“In considering the relative ease of access to proof, a court looks to where documentary 

evidence, such as documents and physical evidence, is stored.” Fintiv Inc. v. Apple Inc., 2019 

WL 4743678, at *2. “[T]he question is relative ease of access, not absolute ease of access.” In re 

Radmax, 720 F.3d 285, 288 (5th Cir. 2013) (emphases in original). “In patent infringement cases, 

the bulk of the relevant evidence usually comes from the accused infringer. Consequently, the 

place where the defendant’s documents are kept weighs in favor of transfer to that location.” In 

re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir. 2020) (citing In re Genentech, 566 F.3d at 1345). 

Here, the Court finds that the location of documentary evidence weighs slightly against transfer.

Microsoft claims that the critical point here is that none of the relevant evidence is in the 

Waco Division and that any relevant Microsoft evidence is located in Redmond, Washington. 

Def.’s Mot. at 8–9. WSOU aptly points out that no relevant Microsoft evidence is located in the 

Austin Division either. Pl.’s Resp. at 5. The presence of relevant documentary evidence in the 

state of Washington is irrelevant when comparing the relative ease of access between the Waco 

and Austin Divisions. See In re Toyota Motor Corp., 747 F.3d at 1341 (“the comparison between 

the transferor and transferee forums is not altered by the presence of other witnesses and 

documents in places outside both forums.”). 

In determining this factor, a court must conduct “an appropriate comparison of the ease 

of access to sources of proof in the two forums.” In re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir. 

2020). Since all relevant Microsoft evidence is in Redmond, Washington, there is no relative 

distinction of ease of access between Waco and Austin.

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While the focus in patent infringement cases is on the location of the defendant’s 

documents, some weight must still be given to location of the plaintiff’s documents. WSOU 

claims to keep its sources of proof at its office in Waco. Pl.’s Resp. at 5. Microsoft points out 

that only a small percentage of the total relevant documents of both parties are located in Waco. 

Def.’s Reply at 1. The Court notes that neither party has identified any documentary evidence 

with any particularity, nor stated the relevance of any documents. Microsoft vaguely states that 

“any relevant Microsoft evidence is located in Redmond, Washington.” Def.’s Mot. at 8. 

Similarly, WSOU states that “there are relevant documents in Waco” and “WSOU keeps its 

sources of proof at its office in Waco.” Pl.’s Resp. at 5. Simply stating that there are generalized 

documents in a certain location, without more, carries little weight. Both parties would be keen 

to identify documents with more particularity to help the Court identity the relevant sources of 

proof. Nevertheless, the only somewhat identifiable documents between the two venues, 

WSOU’s sources of proof, are in Waco. Therefore, the relative ease of access to sources of proof 

factor weighs slightly against transfer.

ii. The Availability of Compulsory Process to Secure the Attendance of Witnesses

Both parties agree that this factor is neutral. Def.’s Mot. at 14; Pl.’s Resp. at 5–6. The 

Court also agrees.

iii. The Cost of Attendance for Willing Witnesses

“The convenience of witnesses is the single most important factor in the transfer 

analysis.” Fintiv, 2019 WL 4743678, at *6. The Court should consider all potential material and 

relevant witnesses. See Alacritech Inc. v. CenturyLink, Inc., No. 2:16-cv-693, 2017 WL 

4155236, at *5 (E.D. Tex. Sept. 19, 2017). “Courts properly give more weight to the 

convenience of non-party witnesses than to party witnesses.” Netlist, No. 6:20-cv-00194-ADA at 

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13; see Moskowitz Family LLC v. Globus Med., Inc., No. 6:19-cv-00672-ADA, 2020 WL 

4577710, at *4 (W.D. Tex. Jul. 2, 2020). Here, the Court finds that the cost of attendance for 

willing witnesses weighs against transfer.

As a preliminary matter, given typical time limits at trial, the Court does not assume that 

all of the party and third-party witnesses listed in 1404(a) briefing will testify at trial. Fintiv, 

2019 WL 4743678, at *6. Rather, in addition to the party’s experts, the Court assumes that no 

more than a few party witnesses—and even fewer third-party witnesses, if any—will testify live 

at trial. Id. Therefore, long lists of potential party and third-party witnesses do not affect the 

Court’s analysis for this factor. Id.

Microsoft states that the overwhelming majority of potentially relevant Microsoft 

witnesses are located in Redmond, Washington. Def.’s Mot. at 9. All strategic decision making

regarding the accused products occurs in the state of Washington. Id. However, between party 

and non-party key witnesses, a court should give greater weight to the availability and 

convenience of non-party key witnesses. Continental Airlines, Inc. v. Am. Airlines, Inc., 805 

F.Supp. 1392, 1397 (S.D. Tex. 1992). Where, as here, the key witnesses are employees of the 

party seeking transfer, their convenience is entitled to less weight because that party will be able 

to compel their testimony at trial. Id. Furthermore, non-party witnesses are given more weight 

because they often have to cover their own costs of attendance. As such, the fact that most of the 

potentially relevant Microsoft party witnesses are located in Washington, carries little weight. 

Moreover, this Court has previously held that, overall, the Austin and Waco Divisions are 

equally convenient for out-of-state witnesses when considering travel time and hotel costs. VSLI 

Tech. LLC v. Intel Corp., 6:19-CV-00254-ADA, 2019 WL 8013949, at *5 (W.D. Tex. Oct. 7, 

2019). In VSLI v. Intel, this Court conceded that an Austin venue would save out-of-state 

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witnesses up to an hour of travel time and that Austin hotels are significantly more expensive 

than Waco hotels. Id. Nevertheless, overall, this Court held that the Austin and Waco Divisions 

are equally convenient for out-of-state witnesses. Id. As such, Microsoft’s argument that Austin 

is more convenient for out-of-state witnesses because there are direct flights to Austin and not to 

Waco carries little weight.

Microsoft goes on to state that there are “absolutely no potentially relevant Microsoft 

witnesses in Waco” while implying that there are potentially relevant Microsoft witnesses in 

Austin who are members of relevant sub-organizations at Microsoft. Def.’s Mot. at 9–10. The 

Court notes that Microsoft fails to adequately identify whether any of these members of alleged

relevant sub-organizations are likely to testify, nor if they have any relevant information that 

makes them potential witnesses. The Court agrees with WSOU that Microsoft offers only enough 

information on in-state witnesses to support mere speculation that there might be potential 

Microsoft witnesses in Austin. Pl.’s Resp. at 7. This mere speculation is not enough to shift this 

factor in favor of transfer. 

The Fifth Circuit’s 100-mile rule states that “[w]hen the distance between an existing 

venue for trial of a matter and a proposed venue § 1404(a) is more than 100 miles, the factor of 

inconvenience of witnesses increases in direct relationship to the additional distance to be 

traveled.” In re TS Tech USA Corp., 551 F.3d 1315, 1320 (Fed. Cir. 2008) (quoting Volkswagen 

I, 371 F.3d at 204–05). The corollary of the 100-mile rule is that when the distance between 

existing venue and proposed venue is less than 100 miles, the factor of inconvenience of 

witnesses decreases in direct relationship to the lessened distance to be traveled. Because the 

distance between Waco and Austin is less than 100 miles, there is no significant difference in 

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cost of attendance for willing witnesses to travel and stay in Waco compared to Austin. As such, 

this factor weighs against transfer.

iv. All Other Practical Problems That Make Trial of a Case Easy, Expeditious and 

Inexpensive

When examining practical problems, the Court considers problems such as those 

rationally based on judicial economy which will weigh heavily in favor of or against transfer. In 

re Volkswagen of Am., Inc., 566 F.3d 1349, 1351 (Fed. Cir. 2009). Judicial economy considers 

the speed and expense of trial at the time this motion to transfer venue was filed. The Court finds 

that this factor is neutral, if not slightly against transfer.

Microsoft argues that this case is still in its earliest stages, thereby negating any 

meaningful transfer-related delay in scheduling. Def.’s Mot. at 13. WSOU counters by pointing 

out that the Waco Division is simply a less congested venue than the Austin Division and that the 

Austin Division has a higher number of criminal cases — the volume of which impacts civil trial 

settings. Pl.’s Resp. at 8. The congested Austin Division coupled with the relative infancy of this 

case, renders this factor neutral. 

Furthermore, Microsoft claims that it is legal error to allow judicial economy 

considerations to “negate[] the significance of having trial close to where most of the identified 

witnesses reside and where the other convenience factors clearly favor,” quoting from In re 

Zimmer Holdings, Inc., 609 D.3d 1378, 1382 (Fed. Cir. 2010). Def.’s Mot. at 13. This argument 

carries little weight as Microsoft has failed to establish that the other convenience factors clearly 

favor transfer, nor that trial in Austin is closer to where most of the identified witnesses reside. 

Therefore, this factor is neutral, if not slightly against transfer. 

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B. The Public Interest Factors Weigh Against Transfer.

i. Administrative Difficulties Flowing from Court Congestion

The relevant inquiry under this factor is “[t]he speed with which a case can come to trial 

and be resolved[.]” In re Genentech, Inc., 566 F.3d 1338, 1347 (Fed. Cir. 2009). A faster average 

time to trial means a more efficient and economical resolution of the claims at issue. Microsoft 

offers no evidence showing that the present case will be tried faster in the Austin Division than 

in the Waco Division. 

WSOU argues that Austin has one of the highest caseloads per judge in the country

which distorts the overall WDTX time-to-trial which is not representative of the time-to-trial in 

the Waco Division. Pl.’s Resp. at 9. Furthermore, WSOU points out that the Waco Division has a 

patent-specific Order Governing Proceedings which can greatly expediate the speed with which a 

case can come to trial and be resolved. Id. Given the congested Austin Division and a patent 

familiar Waco Division, this factor weighs against transfer. 

ii. Local Interest in Having Localized Interests Decided at Home

Under this factor, the Court must evaluate whether there is a local interest in deciding 

local issues at home. Volkswagen, 545 F.3d at 317. “A local interest is demonstrated by a 

relevant factual connection between the events and the venue.” Word to Info, Inc. v. Facebook, 

Inc., No. 3:14-cv-04387-K, 2015 WL 13870507, at *4 (N.D. Tex. Jul. 23, 2015). This factor 

weighs against transfer.

Microsoft alleges that the Austin Division has a stronger localized interest than the Waco 

Division since Microsoft has a presence in Austin and no presence in Waco, while WSOU only 

has a superficial presence in Waco. Def.’s Mot. at 14. WSOU responds by asserting that it is 

headquartered in Waco and has significant roots in the Waco community, as evidenced by its 

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numerous dealings with local businesses and with Baylor University. Pl.’s Resp. at 8. 

Additionally, WSOU is doing business as “Brazos Licensing and Development” indicating a 

connection with Waco and the Brazos River which flows through Waco. Overall, the strongest 

factual connection between either venue is that WSOU is headquartered in Waco. Therefore, the 

Waco Division has a stronger localized interest than the Austin Division. This factor weighs 

against transfer. 

iii. Familiarity of the Forum with the Law That will Govern the Case

Microsoft argues that both Divisions are familiar with and equally capable of applying 

federal patent laws rendering this factor neutral. Def.’s Mot. at 15. WSOU responds that this 

Court has a greater familiarity with patent laws and patent specific rules, as evidenced by the 

standing orders specific to patent law and procedure. Pl.’s Resp. at 10. The Court agrees that the 

Waco Division is more familiar with patent law, yet has no doubt that both Divisions are equally 

capable of applying federal patent law. Therefore, this factor is neutral.

iv. Avoidance of Unnecessary Problems of Conflict of Laws or in the Application of 

Foreign Law

Both parties agree that this factor is neutral. Def.’s Mot. at 15; Pl.’s Resp. at 10. The 

Court also agrees.

V. CONCLUSION

Having found that the relative ease of access to sources of proof factor weighs slightly 

against transfer, the cost of attendance of willing witnesses factor weighs against transfer, 

administrative difficulties flowing from court congestion weighs against transfer, the local 

interest in having localized interests decided at home factor weighs against transfer, and all other 

factors being neutral, the Court finds that Microsoft has not met its heavy burden to demonstrate 

that the Austin Division is “clearly more convenient.” See Volkswagen II, 545 F.3d at 314 n.10;

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QR Spex, 507 F. Supp. 2d at 664. Therefore, because the Court finds that Microsoft has not 

demonstrated that the Austin Division is a clearly more convenient venue than the Waco 

Division, the Court DENIES Microsoft’s Motion to Transfer.

SIGNED this 7th day of April, 2021.

ALAN D ALBRIGHT

UNITED STATES DISTRICT JUDGE

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