IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC d/b/a 

BRAZOS LICENSING AND 

DEVELOPMENT,

Plaintiff,

v.

DELL TECHNOLOGIES INC., DELL

INC., EMC CORPORATION, AND

VMWARE, INC.,

Defendants.

Case No. 6:20-cv-00481-ADA

DEFENDANTS’ REPLY IN SUPPORT OF

OPPOSED MOTION FOR INTRA-DISTRICT TRANSFER OF VENUE 

TO THE AUSTIN DIVISION OF THE WESTERN DISTRICT OF TEXAS

Case 6:20-cv-00481-ADA Document 58 Filed 11/25/20 Page 1 of 12
i

TABLE OF CONTENTS

Page

I. ARGUMENT...................................................................................................................... 1

A. Relative Ease of Access to Sources of Proof Favors Transfer (Factor 1)............... 1

B. Cost of Attendance for Willing Witnesses Favors Transfer (Factor 3) .................. 2

C. All Other Practical Problems Favor Transfer (Factor 4) ........................................ 4

D. Localized Interests Favor Transfer (Factor 6) ........................................................ 4

E. Court Congestion/Familiarity of the Forum Factors Are Neutral (Factors 5 

and 7) ...................................................................................................................... 5

II. CONCLUSION................................................................................................................... 5

Case 6:20-cv-00481-ADA Document 58 Filed 11/25/20 Page 2 of 12
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TABLE OF AUTHORITIES

Page(s)

Cases

In re Adobe,

545 F. App’x 929 (Fed. Cir. 2020) ............................................................................................5

In re Apple Inc.,

2020 WL 6554063 (Fed Cir. Nov. 9, 2020)...............................................................................4

In re Genentech, Inc.,

566 F.3d 1338 (Fed. Cir. 2009)..................................................................................................2

In re Hoffmann-La Roche Inc.,

587 F.3d 1333 (Fed. Cir. 2009)..................................................................................................2

Mimedx Grp., Inc. v. Texas Human Biologics, Ltd.,

No. 1:14-CV-464-LY, 2014 WL 12479284 (W.D. Tex. Aug. 12, 2014)..................................4

Moskowitz Family LLC. v. Globus Med., Inc.,

No. 6:19-CV-00672-ADA, 2020 WL 4577710 (W.D. Tex. July 2, 2020)................................1

In re Nintendo Co., Ltd.,

589 F.3d 1194 (Fed. Cir. 2009)..................................................................................................2

Peteski Prods., Inc. v. Rothman,

No. 5:17-CV-00122-JRG, 2017 WL 8943154 (E.D. Tex. Nov. 13, 2017)................................3

In re Toyota Motor Corp.,

747 F.3d 1338 (Fed. Cir. 2014)..................................................................................................2

VLSI Tech. LLC v. Intel Corp.,

No. 6:19-CV-00254-ADA, 2019 WL 8013949 (W.D. Tex. Oct. 7, 2019)................................3

Case 6:20-cv-00481-ADA Document 58 Filed 11/25/20 Page 3 of 12
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TABLE OF ABBREVIATIONS

Abbreviation Term/Document(s)

Patent U.S. Patent No. 9,164,800

Amended 

Complaint or 

Am. Compl.

Amended Complaint (D.I. 35)

Dell or 

Defendants Dell Technologies Inc., Dell Inc., EMC Corporation, and VMware, Inc. 

Hogan 

Declaration or 

Hogan Decl.

Declaration of Matt Hogan, Case No. 20-cv-473, D.I. 51-5

Motion or 

Mot.

Defendants’ Opposed Motion for Intra-District Transfer of Venue to the 

Austin Division of the Western District of Texas (D.I. 44)

Opposition or 

Opp. Response Opposing Motion to Transfer (D.I. 55)

WSOU or 

Plaintiff WSOU Investments, LLC d/b/a Brazos Licensing and Development

Case 6:20-cv-00481-ADA Document 58 Filed 11/25/20 Page 4 of 12
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TABLE OF EXHIBITS1

Exhibit Description

18 Declarations of Matt Hogan from Cases 20-cv-454 through -465, -473 through -482, 

and -485 through -497 (W.D. Tex.)

19 News Articles Referencing Aqua Licensing and WSOU (last retrieved Nov. 23, 2020)

20 Federal District Court Cases from Lex Machina (obtained Nov. 22, 2020)

21 2019 Fiscal Year Report for the Western District of Texas (last retrieved Nov. 23, 

2020)

22 Microsoft Corporation’s Reply in Support of its Opposed Motion to Transfer Venue to 

Austin Division and Exhibit 19, Case No. 20-cv-454, D.I. 34, 34-3 (W.D. Tex.)

1

 Exhibits are attached to the Supplemental Declaration of Brian A. Rosenthal in Support of

Defendants’ Reply.

Case 6:20-cv-00481-ADA Document 58 Filed 11/25/20 Page 5 of 12
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Defendants explained why this lawsuit’s unique facts demonstrate that Austin is clearly

more convenient than Waco. WSOU does not address this lawsuit’s specific circumstances, but

misrepresents the law and facts, and recycles an old declaration inapplicable to this case. Viewing

the facts under the correct standard, this case should be transferred to Austin.

I. ARGUMENT

A. Relative Ease of Access to Sources of Proof Favors Transfer (Factor 1)

Contrary to WSOU’s argument, the ease of access to proof strongly favors transfer. The

law is clear: “[T]he bulk of the relevant evidence usually comes from the accused infringer.” 

Moskowitz Family LLC. v. Globus Med., Inc., No. 6:19-CV-00672-ADA, 2020 WL 4577710, at

*3 (W.D. Tex. July 2, 2020); Mot. at 6. Defendants have attempted to identify relevant evidence,

including third-party documents, but Defendants’ ability to identify specific documents (or

witnesses) is hampered by WSOU’s deficient allegations and contentions. Mot. at 6 n.5. WSOU

does not dispute that Dell has over 14,000 employees and VMware has over 900 employees in the

Austin Division—and thus documents exist in Austin. Rather, WSOU seeks to use its vague

allegations and contentions as a sword, attacking Defendants for being unable to specifically

identify documents at this juncture. WSOU’s issue about the lack of specificity for Austin

documents is a problem of its own making.

WSOU ignores this reality and focuses on its own documents, but WSOU’s descriptions

of its own documents suffer from a complete lack of specificity. Opp. at 6. It is unclear what

documents WSOU has as it does not dispute that it did not develop the patent or the technology,

nor ever employ the named inventors. Mot. at 2–3, 7. Indeed, it recycles the same Hogan

declaration generically referencing documents in 35 different patent cases. Ex. 18. In the face of

this motion (at 2–3, 7), WSOU’s refusal to explain its (few) documents for this case is telling.

Additionally, WSOU obscures the timing of when and why its documents were moved. 

Case 6:20-cv-00481-ADA Document 58 Filed 11/25/20 Page 6 of 12
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WSOU does not dispute that all of WSOU’s activities related to the Patent occurred outside

Texas.2

 Mot. at 2–3. Instead, WSOU argues this is irrelevant. Opp. at 6–7. The Federal Circuit

disagrees. “[T]he assertion that these documents are ‘Texas’ documents is a fiction which appears

to [have] been created to manipulate the propriety of venue . . . attempts to manipulate venue in

anticipation of litigation or a motion to transfer falls squarely within these prohibited activities.” 

In re Hoffmann-La Roche Inc., 587 F.3d 1333, 1337 (Fed. Cir. 2009).

Unable to rely on the situs of its own documents, WSOU claims that Defendants’

identification of potential third-party sources such as Aqua Licensing is “irrelevant.” Opp. at 7. 

But WSOU’s argument relies on a misapplication of In re Toyota Motor Corp., 747 F.3d 1338,

1341 (Fed. Cir. 2014). In Toyota, the Federal Circuit found, under the specific facts there, the

outside documents did not alter the outcome. Id. Toyota did not create a rule that outside

documents are irrelevant—indeed, the Federal Circuit cited two cases that considered outside

documents and witnesses. Id. (citing In re Genentech, Inc., 566 F.3d 1338, 1346 (Fed. Cir. 2009)

(discussing documents in Europe) and In re Nintendo Co., Ltd., 589 F.3d 1194, 1199 (Fed. Cir.

2009) (discussing witnesses in Japan)). Here, outside documents are not irrelevant, but further

reinforce that WSOU’s documents are minimal, and like Toyota, these outside documents do not

alter, but provide more support, that this factor favors transfer.

B. Cost of Attendance for Willing Witnesses Favors Transfer (Factor 3)

Defendants explained how it is more convenient for each nonparty witness, including the

inventors, past owners and prior sellers of the Patent, and other third parties to have this case tried

in Austin. Mot. at 7–8. Defendants also explained how it is more convenient for both parties’

2 WSOU states, without any supporting declaration, that Defendants “falsely claim” that WSOU

hired Aqua Licensing to sell its patents. Opp. at 3. WSOU’s naked denial is inconsistent with the

available public information as set forth in several online articles. See Ex. 19.

Case 6:20-cv-00481-ADA Document 58 Filed 11/25/20 Page 7 of 12
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witnesses to have the case transferred to Austin. Mot. at 8–9. WSOU does not dispute any of

Defendant’s factual support, including the flight availability, duration, and cost. Instead, WSOU

propounds three generic arguments and then concludes that this factor “weighs heavily” against

transfer. Opp. at 9–10. WSOU’s conclusion rests on a thrice-flawed foundation.

First, WSOU argues that Austin and Waco are equally convenient for out-of-state

witnesses. See Opp. at 9. Despite Defendants’ factual support to the contrary, WSOU fails to

support its statement with any evidence. Nor can it in view of the significant burden witnesses

would suffer in time and/or cost if this stayed in Waco. Although WSOU cites VLSI, this Court’s

statement regarding the convenience of Austin and Waco was based on limited record evidence

assessing travel to Austin and Waco but only from the Austin and Dallas airports. VLSI Tech. LLC

v. Intel Corp., No. 6:19-CV-00254-ADA, 2019 WL 8013949, at *5 (W.D. Tex. Oct. 7, 2019)

(discussing travel from AUS and DFW). Even under a limited record, the Court found that this

factor “strongly weighsin favor of transfer” to Austin. Id. at 5. Here, the evidence is even stronger.

Second, WSOU argues that the identified witnesses should not be given weight without

evidence about willingness. Opp. at 10. Not only is WSOU’s position—requiring a party to

ascertain “willingness” before initial disclosures and pleadings are settled—unreasonable, it is also

unprecedented. WSOU’s sole case Peteski does not say that a party must prove “willingness.” In

Peteski ̧ the court analyzed a transfer from where it had subpoena power of a potential witness to

a court that did not. Peteski Prods., Inc. v. Rothman, No. 5:17-CV-00122-JRG, 2017 WL 8943154,

at *3 (E.D. Tex. Nov. 13, 2017) (witness subject to E.D. Tex.’s subpoena power but not C.D.

Cal.’s). This is why the court discussed whether the witness was willing to appear in California. 

Id. at *3–4. There is no such issue in this case.

Third and finally, WSOU argues that Defendants “forgot” about Dallas. Opp. at 10. It is

Case 6:20-cv-00481-ADA Document 58 Filed 11/25/20 Page 8 of 12
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unclear how Dallas impacts a transfer analysis between Austin and Waco, and tellingly, WSOU

could have provided, but chose not to provide any evidence about Dallas. 

C. All Other Practical Problems Favor Transfer (Factor 4)

Despite WSOU’s protestations, this factor weighs in favor of transfer. As explained, this

factor analyzes whether a case is in its early stages. Mot. at 9 (citing Mimedx Grp., Inc. v. Texas

Human Biologics, Ltd., No. 1:14-CV-464-LY, 2014 WL 12479284, at *2 (W.D. Tex. Aug. 12,

2014)); see also In re Apple Inc., 2020 WL 6554063, at *7 (Fed Cir. Nov. 9, 2020) (discussing

“significant steps”).3

 WSOU does not dispute that this case is in its early stages, meaning the case

schedule is unlikely to be disrupted. Nor could it; this is not a transfer to a different district or

judge. Mot. at 9–10. This case will remain with Your Honor but simply be heard in Austin. Id.

D. Localized Interests Favor Transfer (Factor 6)

Contrary to WSOU’s arguments, localized interests favor transfer. WSOU admits this

factor analyzes the connection of each forum to both the parties and events giving rise to the suit. 

Opp. at 11. It also does not dispute Defendants’ long ties to the Austin Division. See id. Its sole

dispute is if the events giving rise to the suit favor Austin. They indisputably do. Mot. at 10.

WSOU improperly minimizes Defendants’ significant Austin presence by arguing that

Defendants have not identified specific Austin employees. Opp. at 12. But WSOU overlooks that

its insufficient allegations prevented Defendants from identifying particular employees from

among its 14,000 Austin employees. Supra § I.A. Next, WSOU does not dispute that its activities

3

 WSOU unilaterally interprets factor 4 as dealing with court congestion, but it is factor 5 where

congestion is considered. Infra § I.E. It compounds its error by relying on 2019 statistics to claim

Waco is “less congested” than Austin. Current statistics indicate Waco has more civil cases per

judge. Ex. 20. Defendants have not located current criminal statistics, but WSOU’s claim that

Austin has more criminal cases, Opp. at 10–11, is circumspect. Per the 2019 Report, cited by

WSOU, Opp. at 10 n.14, more criminal cases were filed in Waco in 2019, see Ex. 21 at 3. Thus,

WSOU has not supported its position under its erroneous view of the law. Moreover, as this case

will remain with Your Honor, such statistics are meaningless. Mot. at 9–10.

Case 6:20-cv-00481-ADA Document 58 Filed 11/25/20 Page 9 of 12
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relating to this suit occurred before it established a presence in Waco. Mot. at 2–3. Unable to

overcome these facts, WSOU focuses on its recent connection to Waco, stating: it “is a company

headquartered in downtown Waco and has strong ties to Waco.” Opp. at 12. While WSOU’s

“ties” to Waco being “strong” are clear hyperbole, its statement does not reveal how Waco relates

to the events giving rise to this suit. WSOU cites Mr. Hogan’s declaration; he does not discuss

this suit but only other “business[es] and inventors.” Hogan Decl.¶ 6. Neither is relevant here.

WSOU next pivots to unfounded, self-serving, and conclusory attorney argument about

“the work and reputation of WSOU’s employees in Waco.” Opp. at 12. It makes this statement

without explication or citation to any declaration about what employees are involved in this

specific case. Despite referencing a plurality of employees, it has only named one employee—Mr.

Hogan—in Waco.

4

 The Court should reject WSOU’s unsupported assertions.

E. Court Congestion/Familiarity of the Forum Factors Are Neutral (Factors 5 and 7)

WSOU argues these two factors do not favor transfer. Opp. at 11, 12. WSOU is wrong. 

Your Honor will retain control. Mot. at 10. Thus, congestion/familiarity will be the same.5

II. CONCLUSION

Because four factors collectively strongly favor transfer, and the remaining four factors are

neutral,6 this case should be transferred to Austin, which is a clearly more convenient forum.

4

 WSOU references Baylor students but it has not identified any student actually hired. Opp. at 2. 

WSOU mentions job postings, but neglects to mention these postings were posted only after a

different company sued by WSOU stated it was moving to transfer. See Ex. 22 at 4–5. Finally,

WSOU states that it hired an attorney, Opp. at 3, but she was not hired before this lawsuit, and is

irrelevant to the events giving rise to the lawsuit.

5

 WSOU ignores that Your Honor will retain jurisdiction. Instead, WSOU repeats its erroneous

argument about Austin having a higher caseload per judge. See supra note 6. Next, WSOU’s

assertion that another court could not handle a federal case, see Opp. at 11–12, is unprecedented

and unsupported. Finally, WSOU relies on Solas, Opp. at 11, but the Federal Circuit disapproved

of this reasoning. See In re Adobe, 545 F. App’x 929, 932 (Fed. Cir. 2020).

6

 WSOU does not dispute the compulsory process/conflict of laws factors are neutral. Opp. at 8.

Case 6:20-cv-00481-ADA Document 58 Filed 11/25/20 Page 10 of 12
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Dated: November 25, 2020 By: /s/ Barry K. Shelton

Barry K. Shelton

Texas State Bar No. 24055029

bshelton@sheltoncoburn.com

SHELTON COBURN LLP

311 RR 620, Suite 205

Austin, TX 78734-4775 

Telephone: 512.263.2165

Facsimile: 512.263.2166 

Benjamin Hershkowitz

bhershkowitz@gibsondunn.com

Brian A. Rosenthal

brosenthal@gibsondunn.com 

Allen Kathir

akathir@gibsondunn.com

Kyanna Sabanoglu

ksabanoglu@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166-0193 

Telephone: 212.351.4000

Facsimile: 212.351.4035 

Y. Ernest Hsin

ehsin@gibsondunn.com

Jaysen S. Chung

jschung@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105-0921

Telephone: 415.393.8200

Facsimile: 415.393.8306

Ryan K. Iwahashi

riwahashi@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

1881 Page Mill Road

Palo Alto, CA 94304-1211

Telephone: 650.849.5300

Facsimile: 650.849.5333

Attorneys for Defendants

Case 6:20-cv-00481-ADA Document 58 Filed 11/25/20 Page 11 of 12
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CERTIFICATE OF SERVICE

The undersigned certifies that on this 25th day of November 2020, all counsel of record 

who are deemed to have consented to electronic service are being served with a copy of this 

document through the Court’s CM/ECF system under Local Rule CV-5(b)(1). 

/s/ Barry K. Shelton

Barry K. Shelton

Case 6:20-cv-00481-ADA Document 58 Filed 11/25/20 Page 12 of 12