IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

BESANG, INC.,

Plaintiff

v. 

MICRON TECHNOLOGY, INC., 

MICRON SEMICONDUCTOR 

PRODUCTS, INC., and 

MICRON TECHNOLOGY TEXAS, LLC, 

Defendants. 

Case No. 2:23-cv-00028 

JURY TRIAL DEMANDED

DEFENDANTS’ REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO TRANSFER 

VENUE TO THE DISTRICT OF IDAHO UNDER 28 U.S.C. § 1404(a)

PUBLIC VERSION

Case 2:23-cv-00028-JRG-RSP Document 70 Filed 09/06/23 Page 1 of 8 PageID #: 2118
This case should be transferred to Idaho because witness convenience, the single most 

important factor, plainly favors transfer. Oregon-based BeSang 

 and it does not argue that Marshall is more convenient for BeSang. D.I. 1 

at 1. Instead, it argues that trial in Marshall will somehow be more convenient for Micron, 

desperately ignoring the indisputable fact that Micron’s corporate headquarters are in Boise, Idaho, 

where Micron employs over 5,000 people, D.I. 30 at 2, 

 Ex. 1 at 179:4-17,1 including those Micron identified as likely technical 

witnesses. Decl. ¶4. BeSang’s Opposition, on the other hand, relying on misdirection and inuendo, 

attempts to shift focus to DRAM—a non-accused component in only a subset of accused products, 

and highlights unverified, and in many cases inaccurate LinkedIn profiles to identify Texas 

employees with no knowledge relevant to the design or development of 3D NAND. BeSang, not 

Micron, is attempting to manipulate venue.

I. BeSang Cannot Manufacture Venue Ties Through Non-Accused DRAM

DRAM is plainly irrelevant to this case. See D.I. 1 at ¶ 54 (“The Accused Products are all 

3D NAND products ....”). Facing evidence that , D.I.

32-01 at ¶16, BeSang misrepresents its infringement allegations, suggesting that they encompass 

DRAM. See Opp. at 2-9, 14. But BeSang only asserts claims limited to 3D NAND memory. See 

D.I. 1-1 at Claims 13-16 (reciting “wherein the memory cells are nonvolatile memory cells”); 10:3-

6 (describing NAND as nonvolatile memory). A different set of non-asserted claims covers 

“DRAM,” a type of volatile memory. Id. at Claims 1-7, 9:28-29, 10:15-17. 

BeSang’s 81-page contentions claim chart never mentions DRAM, and every claim 

element allegedly maps to “3D NAND memory devices.” See generally, D.I. 32-2. BeSang 

1 All references to “Decl. __” refer to the Declaration of Frances Mackay filed concurrently 

herewith and all references to “Ex. __” refer to the exhibits of that Declaration.

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misleadingly points to three pages of its chart that “depict[]” DRAM. Opp. at 3 (citing D.I. 32-2 

at 7, 10, 13). But what those pages actually show are images of circuit boards with accused 3D 

NAND chips as well as several non-accused components, including DRAM chips, capacitors, and 

resistors. See id. Tellingly, the cited pages neither label the DRAM nor map it to any claim element. 

BeSang’s only relevance argument for DRAM—buried in a footnote (Opp. at 4 n.4)—cites 

no evidence and is untethered to the technology of the ’702 Patent. This case is about 3D NAND 

technology, not DRAM. See D.I. 1 at ¶¶ 6, 21-23, 31, 36-41, 54-95; Decl. ¶38, 39; Ex. 15. 

II. Trial in EDTX Would Be Much Less Convenient for Relevant Party Witnesses 

 and thus do not have material 

knowledge. Micron’s Austin employees also lack material knowledge and are located outside this 

district. Micron’s technical witnesses—whether design, process, or fabrication—are among the 

. Decl. ¶4, 42. For them, Idaho is more convenient. 

Micron identified numerous Idaho-based engineers as potential witnesses, both in its 

motion and in Initial Disclosures. D.I. 30 at 5-6; Ex. 2. It strains credulity that these witnesses are 

“of dubious relevance.” Opp. at 5. “The predominant use of witness testimony in a case such as 

this concerns the technical issues regarding infringement and validity.” VisionX Techs. v. Sony, 

2023 WL 3572898, at *4 (E.D. Tex. May 19, 2023). Here, many of the identified engineers work 

on , which Dr. Kiehlbauch explained 

the specific technical issue at the heart of BeSang’s 

claims. Ex. 1, 157:12-158:4; see also D.I. 32-2 (BeSang’s claim chart maps all claim elements to

cross-sections of structural components of the claimed memory, not circuit design). And while the 

other identified engineers may not have worked on circuit design “during the transition from 2D 

to 3D NAND” (Opp. at 6), no asserted claim covers 2D memory or any alleged “transition.” 

BeSang cannot overcome these facts by engaging in the highly speculative practice of 

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trying to identify Texas-based Micron employees through unverified LinkedIn profiles. In re 

Google LLC, 2021 WL 4427899, at *7 (Fed. Cir. Sept. 27, 2021) (finding “highly speculative” 

reliance on LinkedIn as support for potential relevance of witness’s testimony). Micron has 

confirmed that over 30% of the LinkedIn profiles BeSang proffers state inaccurate employment 

statuses, job titles, or locations. Ex. 3; Decl. at ¶¶16-37, 40. For example, BeSang identifies seven 

alleged in-district Micron employees with alleged knowledge of the accused products/features 

(Opp. at 4), but four have confirmed they do not work on design or development of the accused 

3D NAND. Ex. 4. Moreover, confirmed she never worked at Micron. Decl. at ¶36. 

, not an employee. Ex. 3. And limited prior 

experience with 3D NAND is irrelevant: He worked on a non-memory portion of a “test chip” that 

was never commercialized. Ex. 1, 94:3-7; Ex. 11, 61:10-25, 104:20-105:1; Decl. ¶14. 

III. Dr. Kiehlbauch Properly Investigated and Confirmed That Micron Does Not Design, 

Develop, or Manufacture 3D NAND in Texas 

Dr. Kiehlbauch, Micron’s vice president in charge of 3D NAND development, properly 

relied on his personal knowledge and investigation to determine locations of employees primarily 

responsible for designing the accused products. Id. at 10:7-10, 40:25-41:9, 147:6-9; D.I. 32-1 at 

¶13. He is not an attorney, Ex. 1 at 20:15-16, and so cannot be expected to understand all of “the 

varied issues in this litigation.” Opp. at 2. Because the “predominant use of witness testimony in 

a [patent] case ... concerns the technical issues regarding infringement and validity,” VisionX at 

*4, Dr. Kiehlbauch investigated whether have relevant employees who 

design or develop Micron’s 3D NAND. Ex. 1 at 15:5-12; 81:8-16. 

Id.; D.I. 65-3; see also Decl. ¶14. 

No evidence suggests design or development documents. 

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. Decl. ¶7, Ex. 6. That Dr. Kiehlbauch stated 

he only acknowledges 

that unrelated to his expertise—3D NAND. 

Dr. Kiehlbauch contacted Micron’s to confirm these sites do 

not design or develop 3D NAND. D.I. 32-1 ¶¶14-17. There was no need for a phone call after 

. Ex. 5 at 71:16-74:24. 

. Dr. 

Kiehlbauch acknowledged that Micron D.I. 32-1 ¶17. To 

the extent he was unaware of what products , that “partial gap in [his] 

knowledge” provides no basis for discounting the imbalanced nature of Micron witness locations. 

In re Google, 58 F.4th 1379, 1384 at n.2 (Fed. Cir. 2023). BeSang’s other unwarranted credibility 

attacks are based on incomplete citations to, and misstatements of, testimony. Decl. ¶¶12-15. 

IV. BeSang Does Not Identify Any Material Third-Party Witness In Texas 

BeSang’s speculation about third-party witnesses cannot withstand even cursory scrutiny. 

Opp. at 10-12. First, BeSang identifies four international corporations but cannot identify specific 

witnesses from any of them. See Novelpoint v. Leapfrog, 2010 WL 5068146, at *6 (E.D.Tex Dec. 

6, 2010) (rejecting “conclusions [based] on unidentified witnesses”). Samsung and Hynix are 

based in Korea and are unlikely to have Texas employees with material knowledge. Decl. ¶8. 

AvNet and Mouser are two among a dozen distributors of Micron’s products. BeSang fails to 

identify material evidence they have that it cannot obtain through third-party discovery. Decl. ¶44. 

Second, while BeSang identifies six individuals as potential third-party witnesses, it listed 

only one— —in its original initial disclosures. Opp. at 11; Ex.8. Those disclosures also 

listed Idaho-based third-party , who BeSang now conveniently ignores. Decl. ¶43. 

 is not a material witness: His interactions with BeSang concerned DRAM, not 3D 

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NAND. D.I. 65-16. BeSang also identifies its own as 

a third party (Opp. at 11), but compulsory process is not needed to obtain testimony of a party 

witness. The remaining four are former Micron employees with no relevant ties to this case.2

BeSang does not dispute that Micron’s third-party witness— —is 

material, even identifying him in its Complaint. D.I. 1 at ¶33. far outweighs BeSang’s 

speculative witnesses. See In re FedEx, 2022 U.S. App. LEXIS 28988, *8 (Fed. Cir. Oct. 19, 2022). 

V. Post-Filing Litigation Review In Allen Is Irrelevant To Venue Analysis

BeSang’s reliance on the parties’ agreed location for design file review (Opp. at 14-15) is 

misplaced. To accommodate BeSang’s recent request, 

. Ex. 10; Decl. ¶10.

. Id. And transferring evidence for discovery has no bearing on the venue 

analysis. Intell. Ventures v. T-Mobile, 2018 WL 4175934, at *3 (E.D. Tex. June 29, 2018). 

VI. The Public Interest Factors Support Transfer

This case will have no impact on Micron’s Allen employees— —

but has big stakes for employees working on 3D NAND. Decl. ¶¶42-43. 

Acknowledging that “Micron does have a substantial presence in Boise,” BeSang counters with 

two Micron distributors in Texas. Opp. at 12. But in-district sales by non-parties cannot create 

local interest. See AGIS v. HTC, 2018 WL 4680558, at *10 (E.D. Tex. Sept. 28, 2018). 

In addressing court congestion, BeSang ignores that trial is set months after the ’702 Patent 

expires. D.I. 48. Delay in a trial that could only bring damages is not entitled to any weight, 

irrespective of BeSang’s (D.I. 56 at 2). In re Google, 58 F.4th at 1383. 

2 BeSang’s own exhibits (unverified LinkedIn profiles) confirm that these individuals are 

irrelevant: profile never mentions the accused 3D NAND technology (D.I. 65-21); 

 profiles do not mention NAND work for Micron (D.I. 65-35 at 

2-7, 13-15); and worked at Micron’s fab for less than two years (id. at 8-9). 

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Dated: August 30, 2023 Respectfully submitted,

/s/ Melissa R. Smith 

GILLAM & SMITH, LLP

Melissa R. Smith (TX #24001351) 

melissa@gillamsmithlaw.com

303 South Washington Avenue 

Marshall, Texas 75670 

Telephone: (903) 934-8450 

Facsimile: (903) 934-9257 

O’MELVENY & MYERS LLP

John Kappos (TX# 24130097) 

jkappos@omm.com 

Timothy S. Durst (TX #00786924) 

tdurst@omm.com 

Cason G. Cole (TX#24109741) 

ccole@omm.com 

Frances Mackay (TX#24109494) 

fmackay@omm.com

2501 North Harwood Street, Suite 1700 

Dallas, TX 75201 

Telephone: (972) 360-1900 

Facsimile: (972) 360-1901 

Xin-Yi Zhou (TX# 24127916) 

vzhou@omm.com 

400 South Hope Street, 18th Floor 

Los Angeles, CA 90071 

Telephone: (213) 430-6000 

Facsimile: (213) 430-6407 

William M. Fink (admitted pro hac vice)\ 

tfink@omm.com

Patric Reinbold (admitted pro hac vice) 

preinbold@omm.com 

1625 Eye Street, NW

Washington, DC 20006 

Telephone: (202) 383-5300 

Facsimile: (202) 383-5414 

Attorneys for Defendants Micron Technology, Inc., 

Micron Semiconductor Products, Inc., and 

Micron Technology Texas, LLC. 

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have 

consented to electronic service are being served with a copy of this document via the Court’s 

CM/ECF system per Local Rule CV-5(a)(3) on August 30, 2023. Any other counsel of record will 

be served by facsimile transmission, e-mail and/or first class mail.

/s/ Melissa R. Smith

 Melissa R. Smith

 

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