FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER

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. 

CIVIL ACTION NO. 2:23-cv-00028 

JURY TRIAL DEMANDED 

BESANG, INC.’S SURREPLY IN OPPOSITION TO DEFENDANTS’ MOTION TO 

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

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Case 2:23-cv-00028-JRG-RSP Document 72 Filed 09/13/23 Page 1 of 8 PageID #: 2189
FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER

1 

I. ARGUMENT 

A. Micron Did Not Meet Its Burden. 

Micron’s Motion was premised on the false claims that “there are no relevant witnesses 

or sources of proof in this District[,]” and that none of Micron’s Allen employees “have any 

knowledge relevant to this case[.]” Dkt. 30 at 1 (emphasis added). After conducting venue 

discovery and deposing Micron’s declarant, Dr. Kiehlbauch—who did not write his declaration, 

had no knowledge of what is relevant to this case, and disavowed his own sworn statements 

during his deposition—BeSang established that Micron’s claims are false and that this district 

has a strong connection to this case. See generally Dkt. 65 (“Resp.”). In Reply, Micron submits 

a new eleven-page attorney declaration to quibble with BeSang’s evidence showing that the 

transfer factors disfavor transfer.1 But it is Micron’s burden to establish good cause for transfer. 

Because Micron has failed to meet its burden, the Court should deny Micron’s Motion. 

B. DRAM Is Relevant and Material to this Case. 

Discovery revealed that Micron premised its motion on the mistaken belief that Allen, 

Texas-based DRAM memory components were not in the Accused Products. Now Micron has to 

downplay DRAM’s relevance—arguing that only NAND-specific documents and witnesses can 

be used here. But this is at odds with the actual circumstances of this case. Here, Micron 

conducts its infringing sales by placing NAND and other memory components like DRAM into 

the Accused Products (such as SSDs) and selling those products to its distributors and endcustomers. While true that the 3D NAND component’s circuitry and memory cells are what map 

onto the asserted claims, that circuitry and those cells are not sold separately. 

1

 Micron offers pages of argument buried in an attorney declaration. See Dkt. 67-1 (Mackay Decl.). 

These arguments should be disregarded both because they were offered for the first time in Reply 

and because they are inconsistent with the page limits imposed by the Local Rules. 

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Case 2:23-cv-00028-JRG-RSP Document 72 Filed 09/13/23 Page 2 of 8 PageID #: 2190
FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER

2 

 See Ex. JJ; McCarty Decl. ¶¶ 2–4. Micron ignores this 

individualized circumstance, and in doing so ignores that it may argue later that DRAM must be 

addressed in any damages analysis of the SSD sales. Micron further ignores the circumstances 

showing that its Allen-based DRAM facility and people are critical sources of proof due to their 

discussions with BeSang regarding licensing, BeSang’s patents, and the parties’ pre-suit 

relationship. Resp. at 8. Micron ignores that its DRAM future appears to rely on BeSang’s 

technology directly related to this action—more key willfulness evidence. Resp. Ex. P at 5. And 

Micron ignores that many of these Allen-based witnesses have overlapping 2D NAND and 3D 

NAND experience (as well as with 3DXP, an abandoned alternative to the Accused Products). In 

short, Micron fails to consider the circumstances showing that the company’s operations in this 

district, especially its DRAM people and proof, are highly relevant. See In re Hulu, LLC, No. 

2021-142, 2021 WL 3278194, at *3 (Fed. Cir. Aug. 2, 2021) (“[A] bare and generalized analysis” 

does not provide the “‘individualized, case-by-case consideration’ of the relevant factors, as is 

required for the analysis of a § 1404(a) motion.”). 

C. The Cost of Attendance For Willing Witnesses Weighs Against Transfer. 

Micron’s simplistic view of this factor has never been endorsed by the Federal Circuit. 

See In re Genentech, Inc., 566 F.3d 1338, 1343 (Fed. Cir. 2009). In fact, that court has already 

rejected elevating “key witnesses” (here, Micron’s 3D NAND witnesses) at the expense of others 

(here, other 3D NAND, SSD, 3DXP, DRAM, or willfulness witnesses). Compare Reply at 2 

(arguing “many” of its identified witnesses work on the “issue at the heart of BeSang’s claims”), 

with Genentech, 566 F.3d at 1343 (rejecting “key witness” test).2 

2

 Micron also cites VisionX Techs. v. Sony, No. 2:22-CV-00178, 2023 WL 3572898, at *4 (E.D. 

Tex. May 19, 2023), apparently suggesting that infringement and validity witnesses are more likely 

to testify at trial. The VisionX court never made that suggestion, and the Federal Circuit has found 

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Case 2:23-cv-00028-JRG-RSP Document 72 Filed 09/13/23 Page 3 of 8 PageID #: 2191
FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER

3 

Even so, Micron’s attempt at identifying seven “key” witnesses was flawed; each witness 

worked on manufacturing processes like etching, not the circuit design at issue here. Resp. at 5–

6. To compensate for this flaw, Micron first attempts to backfill by arguing that there are 

actually —not seven—witnesses that it could call to trial. Reply at 2. This is not 

relevant. See Safoco, Inc. v. KLX Energy Servs., LLC, 2:22-cv-0437-JRG-RSP, 2023 WL 

4281243, at *2–*3 (E.D. Tex. June 10, 2023) (“[T]he Court is disinclined to give much weight to 

KLX’s argument about unidentified witnesses it may call . . . .”). Second, despite their lack of 

knowledge or experience designing these products, Micron reasons that each identified witness is 

still relevant because manufacturing processes eventually make the product’s end-structure. 

Reply at 2. But this is too clever by half. Micron’s corporate representative destroyed this 

generic observation, testifying as to such witnesses: “They’re definitely not designing the circuit 

structure.” See Ex. KK at 157:12–158:10. None were involved in the transition from 2D to 3D 

NAND or the circuit designs that, contrary to Micron’s claims, are squarely at issue here.3

Micron next attempts in a scattershot fashion to rebut witnesses identified by BeSang: 

 Micron attacks the evidence BeSang identified as “unverified,” “speculative” LinkedIn 

profiles. There is no reason to think Micron employees would misstate their credentials, 

and the Federal Circuit has indicated that LinkedIn profiles are permissible. In re Apple 

Inc., No. 2023-135, 2023 WL 5274629, at *2 (Fed. Cir. Aug. 16, 2023). Micron’s attack 

also ignores that: (1) it is Micron’s burden; and (2) BeSang relied on publicly available 

evidence only after Micron withheld its HR information despite BeSang propounding an 

interrogatory directly on point. See Ex. LL (BeSang’s Venue Interrogatory No. 1). 

 Micron now provides never-produced HR data suggesting that certain individuals BeSang 

identified are no longer at Micron. The majority are post-Complaint departures, 

rendering their departure irrelevant, Longhorn HD LLC v. Juniper Networks, Inc., No. 

2:21-CV-00099-JRG, 2021 WL 4243382, at *2 (E.D. Tex. Sept. 16, 2021), and any 

error in the “categorical rejection” of witnesses based upon generalizations and “speculation that 

they would be ‘unlikely to testify at trial.’” Hulu, 2021 WL 3278194, at *3. 

3 See Dkt. 1 ¶¶ 22–25 (“Dr. Sang-Yun Lee incorporated BeSang in 2003 to develop, in part, 

three- dimensional (3D) integrated circuit technologies to overcome the above-mentioned 

deficiencies of the 2D solutions”); Dkt. 32-2 at 16, 29, 47 (accusing particular “circuitry”). 

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Case 2:23-cv-00028-JRG-RSP Document 72 Filed 09/13/23 Page 4 of 8 PageID #: 2192
FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER

4 

employees that departed prior to the Complaint should be considered under the subpoenapower factor. 

 Micron rebuts four Allen employees because they do not presently “perform any work” 

on “the design or development of 3D NAND.” See Reply Ex. 4. Evidence shows these 

witnesses have relevant, recent knowledge.4

 There is no relevancy test whether a witness 

currently works on certain projects at the company. 

 Micron discounts , who states for the first time in Reply that he did 

not “actually use” a characterization platform he created. Reply Ex. 4 at 8. This is beside 

the point. Micron’s development of a platform to characterize accused products is both 

material and relevant to this case. 

 Micron suggests that is not relevant because Micron employs her on a 

contract basis, but fails to explain why that matters. Affiliation with Micron renders her a 

willing witness, falling squarely within this factor. 

 Micron seeks to disregard because his work on 3D NAND was not 

“commercialized,” Reply at 3, but the technical details regarding that work and Micron’s 

decision not to commercialize it is relevant and material to this case. 

The record shows at least 35 willing witnesses here with relevant, material information.5

 

Certainly Micron has not disproven their relevance. See Seven Networks, LLC v. Google LLC, 

No. 2:17-CV-00441-JRG, 2018 WL 4026760, at *5 (E.D. Tex. Aug. 15, 2018) (crediting 

plaintiff’s identification of relevant evidence where movant had not proven it was irrelevant.). 

D. Compulsory Process Weighs Against Transfer. 

As to compulsory process, Micron disregards SK hynix (a BeSang licensee) and 

Samsung (a highly relevant third party and non-infringing alternative) because BeSang did not 

identify specific individuals in the district. There is “no basis to discount these entities just 

because individual employees were not identified.” In re HP Inc., 826 F. App’x 899, 903 (Fed. 

4 Compare Reply Ex. 4, with Resp. at 4. See also Resp. Ex. E at 4–5 ( has experience in 

NAND); 8 ( “documented, developed, and improved Enterprise SSD and DRAM process 

flows”); 19 ( has “8 years of experience developing from end firmware for various SSD 

products for SanDisk”); 21–22 ( has NAND and NVM experience); 25 ( 

“[c]orroborated characterization data with Product Device Engineering and NAND design team”). 

5

 BeSang accepts Micron’s representation that does not work at Micron despite her 

holding herself out to the public as an employee of the company. Ex. MM; McCarty Decl ¶ 7. 

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Case 2:23-cv-00028-JRG-RSP Document 72 Filed 09/13/23 Page 5 of 8 PageID #: 2193
FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER

5 

Cir. 2020); In re Apple Inc., No. 2021-181, 2021 WL 5291804, at *3 (Fed. Cir. Nov. 15, 2021). 

Micron downplays its own distribution-partners because not a single one is subject to 

compulsory process for trial in Idaho while five are subject to process here. Resp. at 11. But 

Micron points to no authority for its view that these distributors must be ignored unless BeSang 

can prove that the information they have cannot be “obtain[ed] through third-party discovery.” 

Reply at 4. Indeed, Micron’s argument appears to be directly inconsistent with Volkswagen, 

which weighed this factor in favor of the venue that enjoyed “absolute subpoena power for both 

depositions and trial.” In re Volkswagen of Am., Inc., 545 F.3d 304, 316 (5th Cir. 2008). 

Next, Micron takes aim at , seeking to dismiss him as pertaining to only 

DRAM.6

 But is a third-party witness with direct dealings with BeSang regarding 

licensing and DRAM. Micron fails to show why the Court should disregard these witnesses 

under this factor, which weighs against transfer. 

E. The Remaining Factors Weigh Against Transfer. 

Micron’s Allen facility likely houses relevant documents, Resp. at 7–9, and Micron itself 

acknowledges relevant documents in Austin. Reply at 3–4. Importantly, Micron completely 

failed to present evidence for where its cloud documents are actually located. Resp. at 9. As to 

local interest, Micron discounts its distributors, ignoring that it is Micron who is inducing that 

infringement. Id. at 11. And Micron has no answer for BeSang’s engagement in the market, 

instead minting a new rule (with no authority) that the court-congestion factor does not matter 

when a patent will expire before the trial date. Each factor counsels against transfer.

6

 Micron also announces that four of its former employees have “no relevant ties to this case,” but 

that is contrary to the record. See Resp. Ex. T ( worked on test programs for NAND 

and DRAM at Micron); Resp. Ex. HH at 5 ( was Corporate VP and General Manager 

for the relevant Storage Business Unit at Micron); 8–9 ( , an “ex-Micron” engineer, was 

involved in “CMOS Reliability, 3D NAND reliability development” at Micron); 13 ( , 

listing NAND and 3D XPoint as his specialties, has 3D XPoint experience at Micron). 

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Case 2:23-cv-00028-JRG-RSP Document 72 Filed 09/13/23 Page 6 of 8 PageID #: 2194
FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER

6 

DATED: September 6, 2023 Respectfully submitted, 

/s/ Warren J. McCarty, III 

Bradley W. Caldwell 

Texas State Bar No. 24040630 

Email: bcaldwell@caldwellcc.com 

Jason D. Cassady 

Texas State Bar No. 24045625 

Email: jcassady@caldwellcc.com 

John Austin Curry 

Texas State Bar No. 24059636 

acurry@caldwellcc.com 

Warren J. McCarty, III 

Texas State Bar No. 24107857 

Email: wmccarty@caldwellcc.com 

R. Seth Reich Jr. 

Texas State Bar No. 24088283 

Email: sreich@caldwellcc.com 

Xu Zhou 

Texas State Bar No. 24121219 

xzhou@caldwellcc.com 

Bjorn A. Blomquist 

Texas State Bar No. 24125125 

bblomquist@caldwellcc.com 

James F. Smith 

Texas State Bar No. 24129800 

jsmith@caldwellcc.com 

Richard Cochrane 

Texas State Bar No. 24116209 

rcochrane@caldwellcc.com 

Aisha Mahmood Haley (admitted pro hac vice) 

District of Columbia Bar No. 1034110 

ahaley@caldwellcc.com 

John F. Summers 

Texas State Bar No. 24079417 

jsummers@caldwellcc.com 

Caldwell Cassady & Curry P.C.

2121 N Pearl Street, Suite 1200 

Dallas, TX 75201 

Telephone: (214) 888-4848 

Facsimile: (214) 888-4849 

Deron R. Dacus 

State Bar No. 00790553 

The Dacus Firm, P.C. 

821 ESE Loop 323, Suite 430 

Tyler, TX 75701 

Phone: (903) 705-1117 

Fax: (903) 581-2543 

ddacus@dacusfirm.com 

Attorneys for Plaintiff 

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Case 2:23-cv-00028-JRG-RSP Document 72 Filed 09/13/23 Page 7 of 8 PageID #: 2195
FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER

7 

CERTIFICATE OF SERVICE 

The undersigned certifies that the foregoing document was served on all counsel of 

record via electronic mail on September 6, 2023. 

/s/ Warren J. McCarty, III 

Warren J. McCarty, III 

CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL 

The undersigned certifies that the foregoing document is authorized to be filed under seal 

pursuant to the Protective Order submitted in this case. 

/s/ Warren J. McCarty, III 

Warren J. McCarty, III 

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Case 2:23-cv-00028-JRG-RSP Document 72 Filed 09/13/23 Page 8 of 8 PageID #: 2196