Opinion
W-22-CV-00122-ADA
06-13-2023
ZENTIAN LTD., Plaintiff v. APPLE, INC., Defendant
ORDER GRANTING DEFENDANT'S MOTION TO TRANSFER
ALAN D. ALBRIGHT, UNITED STATES DISTRICT JUDGE
Before the Court is Defendant Apple, Inc.'s (“Apple”) Motion to Transfer Venue to the Northern District of California filed on December 16, 2022. ECF No. 51. Plaintiff Zentian Ltd. (“Zentian”) filed its opposition on May 5, 2023. ECF No. 86. Apple filed a reply to further support its motion on May 26, 2023. ECF No. 91. After careful consideration of the parties' briefs and the applicable law, the Court GRANTS Apple's motion to transfer venue to the Northern District of California.
I. FACTUAL BACKGROUND
In its complaint, Zentian claims Apple infringes U.S. Patent Nos. 7,587,319 (“'319 patent”), 7,979,277 (“'277 patent”), 10,062,377 (“'377 patent”), 10,971,140 (“'140 patent”), and 10,839,789 (“'789 patent”) (collectively, the “asserted patents”), which are directed to “improv[ing] the performance and efficiency of speech recognition on-device systems, including in the areas of parallel processing and circuit configurations.” ECF No. 1 ¶¶ 41-42, 47, 52, 57, 62. Zentian, the owner of the asserted patents, is a private corporation incorporated and registered in the United Kingdom. Id. ¶ 16-17. Apple is a corporation headquartered in Cupertino, California. Id. ¶ 18. According to Zentian, Apple sells products that implement the allegedly infringing speech recognition technology, including Apple's iPhone, iPad, Watch, AirPods, HomePod, HomePod Mini, Apple TV set top box, and Mac computers. Id. ¶ 14. The Court will refer to these products collectively as the “accused products.”
Along with this case, Zentian filed one other case in this District alleging infringement of the asserted patents. Zentian Ltd. v. Amazon.com Inc., No. 6:22-cv-00123-ADA (W.D. Tex. Feb. 2, 2022) [hereinafter Amazon Litigation]. The defendant in that case, Amazon.com, Inc. (“Amazon”), did not file a motion to transfer venue.
After responding to Zentian's complaint, Apple filed this motion to transfer. ECF No. 51. Apple does not argue that the Western District of Texas (“WDTX”) is an improper venue for this case; instead, it argues that the Northern District of California (“NDCA”) is a more convenient forum, pointing to the location of potential witnesses and the relevant records in California. Id. at 1. Zentian contends that this case should remain in the WDTX, pointing to, among other factors, Apple's witnesses and evidence in Texas and the co-pending Amazon Litigation. ECF No. 86 at 1.
II. LEGAL STANDARD
In patent cases, motions to transfer under 28 U.S.C. § 1404(a) are governed by the law of the regional circuit-here, the Fifth Circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). 28 U.S.C. § 1404(a) provides in part that “[f]or 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 . . . ” Id. “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 preliminary question under § 1404(a) is whether a civil action “‘might have been brought' in the destination venue.” In re Volkswagen, Inc., 545 F.3d 304, 312 (5th Cir. 2008) [hereinafter Volkswagen II]. 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. 2004) (footnote omitted). The private interest 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 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).
The moving party has the burden to prove that a case should be transferred for convenience. Volkswagen II, 545 F.3d at 314. The burden is not simply that the alternative venue is more convenient, but that it is clearly more convenient. Id. at 314-15. While “clearly more convenient” is not the same as the “clear and convincing” standard, the moving party must still show more than a mere preponderance. Quest NetTech Corp. v. Apple, Inc., No. 2:19-cv-118, 2019 WL 6344267, at *7 (E.D. Tex. Nov. 27, 2019). Yet, the Federal Circuit has clarified that, for a court to hold that a factor favors transfer, the movant need not show an individual factor clearly favors transfer. In re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir. 2020).
III. DISCUSSION
The threshold determination in the § 1404(a) analysis is whether this case could initially have been brought in the destination venue-the NDCA. Apple argues that the case could have been brought in the destination venue because Apple is headquartered in the NDCA. ECF No. 51 at 6. Zentian does not disagree. ECF No. 86. The Court concludes that the threshold determination is met. The Court now analyzes the private and public interest factors to determine whether the NDCA is a clearly more convenient forum than the WDTX.
A. The Private Interest Factors
i. The Cost of Attendance and Convenience for Willing Witnesses
The most important factor in the transfer analysis is the convenience of the witnesses. In re Genentech, Inc., 566 F.3d 1388, 1342 (Fed. Cir. 2009). According to Fifth Circuit law, if the distance between a current venue and a proposed venue is more than 100 miles, the inconvenience to witnesses increases in direct relationship to the additional distance they must travel if the matter is transferred. Volkswagen II, 545 F.3d at 317. But it is unclear when the 100-mile rule applies, as the Federal Circuit has stated that courts should not apply the rule “rigidly” in cases where witnesses would be required to travel a significant distance no matter what venue they testify in. In re Apple, 979 F.3d at 1342 (discussing witnesses traveling from New York) (citing Volkswagen II, 545 F.3d at 317). “[T]he inquiry should focus on the cost and inconvenience imposed on the witnesses by requiring them to travel to a distant forum and to be away from their homes and work for an extended period of time.” In re Google, LLC, No. 2021-170, 2021 WL 4427899, at *4 (Fed. Cir. Sept. 27, 2021). According to the Federal Circuit, time is a more important metric than distance. Id. However, the Federal Circuit has also held that when willing witnesses will have to travel a significant distance to either forum, the slight inconvenience of one forum in comparison to the other should not weigh heavily on the outcome of this factor. In re Apple, 979 F.3d at 1342. When analyzing this factor, the Court should consider all potential witnesses. Alacritech Inc. v. CenturyLink, Inc., No. 2:16-CV-00693, 2017 WL 4155236, at *5 (E.D. Tex. Sept. 19, 2017).
According to Apple, the relevant witnesses from Apple are primarily located in the NDCA. ECF No. 51 at 9. Zentian argues that Apple also has relevant witnesses in Austin. ECF No. 86 at 8-9. Zentian's potential witnesses are in the United Kingdom. ECF No. 86 at 12. Each group of witnesses will be discussed below.
1. Apple's Employees in the NDCA
Apple argues that all the technical witnesses it expects to call at trial are based in the NDCA. ECF No. 51 at 9. Specifically for the accused software components of Apple's products, Apple identifies Mahesh Krishnamoorthy, a Machine Learning Manager in the Siri and Language Technologies team. Id. at 2. Apple argues that Mr. Krishnamoorthy is knowledgeable of Apple's Siri speech recognition software. Id. [Redacted] members of Mr. Krishnamoorthy's team are based in the NDCA. ECF No. 51-2 ¶ 5. The remaining [Redacted] members are based in states other than Texas (although Apple did not identify which states these other members reside in). Id. Apple also identifies Kushal Dalmia, a Software Development Engineering System Manager. ECF No. 51 at 3. Apple claims that Mr. Dalmia is knowledgeable about the operating system software that assigns tasks, including speech recognition tasks, to CPU processing resources in the accused products. Id. Apple claims that every member of Mr. Dalmia's team is based in Cupertino. ECF No. 51-3. Apple further identifies Kisun You, a Machine learning Research manager on the Siri Speech team. ECF No. 51 at 3. Dr. You states that the “vast majority” of his team is based in the NDCA, [Redacted] members reside in Seattle, and no members of his team reside in Texas. ECF No. 51-4 ¶ 5.
In response, Zentian argues that, “[w]hile speech recognition requires software, the salient features of Zentian's patents relate to the hardware componentry, designs, and configurations across which that software runs.” ECF No. 86 at 10. Zentian also points out that Mr. Dalmia testified that his team never sees or handles software for speech recognition. Id. In its reply, Apple notes that, in total, [Redacted] Apple employees in the NDCA develop Apple's speech recognition software and the accused Neural Engine hardware. Id. at 2. None of Apple's Texas employees develop speech recognition software or work on the accused Neural Engine hardware. Id
The Court finds that the presence of Apple software employees with relevant knowledge of the accused products, including Dr. You and Messrs. Krishnamoorthy and Dalmia, support transfer. While Zentian argues that its patents relate to hardware, the Court is not persuaded that Apple's software employees are irrelevant. For example, Claim 1 of the '140 patent expressly requires that “the plurality of processors is configured to compute a probability using the acoustic model data in the acoustic model memory.” ECF No. 1-4 at 12:13-26. As another example, Claim 1 of the '377 patent requires “a first programmable device programmed to calculate a feature vector from a digital audio stream,” “a second programmable device programmed to calculate distances indicating the similarity between a feature vector and a plurality of acoustic states of an acoustic model,” and “a third programmable device programmed to identify spoken words in said digital audio stream.” ECF No. 1-5 at 38:53-39:8. Based on the language of the asserted claims, the Court believes that the functionality of Apple's speech recognition software will likely be at issue at trial. Thus, the Court does not categorically rule out Apple's employees focused on software.
Zentian only takes specific issue with one of Apple's identified software employees, Mr. Dalmia. While Zentian points to deposition testimony in which Mr. Dalmia notes that he has not worked on speech recognition, the Court believes that Mr. Dalmia may possess some relevant knowledge of the accused products. As Zentian argues, its patents are “implementations of ‘speech recognition circuit[s]' and ‘system[s]' that include an ‘acoustic coprocessor,' ‘parallel processing,' and ‘pipelining data' in different orientations and configurations between various CPUs, memory, interfaces, and buffers.” ECF No. 86 at 2. Mr. Dalmia is “knowledgeable about, the operating system software (OS) that assigns tasks, including speech recognition tasks, to CPU processing sources in Apple products.” ECF No. 51-3 ¶ 5. Mr. Dalmia's knowledge may help explain whether Apple's speech-recognition product relies on “‘parallel processing,' and ‘pipelining data' in different orientations and configurations” between the different hardware components. For that reason, the Court weighs Mr. Dalmia's and his teams' presence in the NDCA in favor of transfer.
As for witnesses knowledgeable of the accused hardware components of Apple's products, Apple identifies the Neural Engine team, which is entirely based in the NDCA. ECF No. 51 at 3. No members of Apple's Neural Engine design team are based in Texas. ECF No. 51-8 ¶ 8. Apple also notes that members of its GPU team, particularly the director of the GPU IP Design team, James Percy, are based in the NDCA. ECF No. 51 at 3-4. Zentian acknowledges that Apple's Neural Engine team consists of [Redacted] members in the NDCA. ECF No. 86 at 10. Zentian does not dispute the relevancy of this team.
The Court concludes that Apple's Neural Engine team may possess relevant knowledge. Zentian's Complaint specifically alleges that Apple's Neural Engine infringes the asserted patents. ECF No. 1 at ¶¶ 102, 104, 159-63, 199. And Zentian does not dispute the relevance of this team.
Thus, the Court weighs the presence of the [Redacted] members of the Neural Engine team in the NDCA in favor of transfer.
Apple next argues that all of its relevant marketing and licensing employees are also based in the NDCA. ECF No. 51 at 9. Apple identifies Carter Williams, a Product Manager in the Platform product Marketing team, who is based in the NDCA and possesses knowledge of the marketing of software features of the iOS, iPadOS, watchOS, tvOS, and macOS platforms. Id. at 4. Mr. Williams's team is based in the NDCA, except for [Redacted] member in Seattle and [Redacted] in London. ECF No. 51-5 ¶ 4. Apple also identifies Jacob Anderson, an attorney in Apple's IP Transactions team, who is based in the NDCA and is knowledgeable regarding Apple's patent licensing. ECF No. 51 at 4. Mr. Anderson claims that all the Apple employees responsible for patent transactions and patent licensing are based in the NDCA, except for [Redacted] employees based in Colorado. ECF No. 51-6 ¶ 4.
Zentian argues that Mr. Anderson does not possess relevant knowledge because he stated in a deposition that he could not identify a single license his team has worked on related to speech recognition. ECF No. 86 at 10. Zentian also argues that Williams does not possess relevant knowledge because he only markets Apple software, not its hardware. Id. at 10-11. Zentian notes that Apple employees involved in marketing Apple's hardware are located outside the NDCA. Id. at 11.
For Mr. Williams, the Court is not willing to discredit the relevancy of this witness simply because his marketing work involves marketing the software elements of the accused features, rather than the hardware. As discussed above, the Court believes the asserted claims involved at least some elements of software. Mr. Williams's works on the marketing of the Siri voice assistant, which is accused in this case. ECF No. 86-3 at 22:4-8; ECF No. 1 at ¶¶ 130, 134, 156, 158, 165, 186, 188, 190-92, 194-96, 204-05. Based on his experience marketing the accused Siri functionality, Mr. Williams's knowledge of Apple's marketing may be relevant to determining damages in this case. As for Mr. Anderson, the Court acknowledges that, during his deposition, Mr. Anderson stated that “[s]itting here right now, no agreements come to mind . . . where the underlying assertion was, you know, directed to speech recognition.” ECF No. 86-19 at 27:21-25. While Mr. Anderson may be unable to provide a similar licensing agreement from Apple related to speech recognition, Mr. Anderson may still possess some relevant knowledge regarding Apple's licensing practices. The Court does not fully discredit Mr. Anderson's relevance.
2. Apple's Employees in the WDTX
Zentian argues that Apple employs many individuals in this District who possess relevant knowledge of the hardware of the accused products. ECF No. 86 at 4-5. Zentian broadly identifies [Redacted] teams with members in Texas. Id. at 8-9. More specifically, Zentian notes that David Williamson and [Redacted] other Apple employees in the WDTX work on Apple's always on processor (AOP) and main application processor as part of the CPU Design team. Id. at 9. Further, Zentian notes that [Redacted], and at least [Redacted] other employees in the WDTX work on Apple's GPUs. Id. Further, [Redacted] located in the WDTX, work on the physical placement and routing of components in Apple devices. Id. Zentian claims that [Redacted] verifies hardware design. Id. And [Redacted] work on the circuits, memory, GPUs, and hardware architecture of the accused products. Id. Further, Zentian argues that [Redacted] are in the WDTX and authored Apple hardware architecture specifications. Id. Further, Zentian also claims that WDTX-based, [Redacted] collaborate with the Siri and Language Technologies Team. Id. at 6.
In response, Apple argues that its graphics processing unit design director, James Percy, testified that “Apple's GPUs do not do speech recognition.” ECF No. 91 at 2 (citing ECF No. 8611 at 28:16-29:1). Apple notes that Zentian relies on a third-party interview from 2012 to show that Apple's Siri product is “driven by the GPU.” ECF No. 91 at 2; ECF No. 86-22 at 4. But Apple notes that this interview predates the release of the accused products. ECF No. 91 at 2-3. Apple also complains that “Zentian ignores clear testimony that [other teams in the WDTX] do not work on speech recognition.” Id. at 3 (emphasis in original). Apple argues that the WDTX-based employees who work on general-purpose hardware are not relevant. Id.
For the WDTX-based members of Apple's GPU team identified by Zentian, the Court expresses some doubt regarding their relevance. As Mr. Percy has stated, Apple's GPUs do not perform speech recognition. ECF No. 86-11 at 28:16-21. The only basis for Zentian's claim that Apple's Siri product uses GPUs is a 2012 interview with a third party. ECF No. 86 at 11 n.3; ECF No. 86-22. Based on the evidence provided, the Court does not weigh the presence of GPU team members in the WDTX heavily against transfer.
As for WDTX-based members of the CPU Design team, the Court believes that members of this team, including Mr. Williamson, may possess relevant knowledge about the accused products. First, Mr. Williamson and his team possess knowledge of the hardware of the accused product. While Apple claims that employees that work on general-purpose software are irrelevant, at this stage of the litigation, the Court hesitates to rule out the relevancy of general-purpose hardware. One of Apple's declarants, Mr. Williamson, seems to acknowledge that Apple's speech recognition software may operate on its CPUs. See ECF No. 86-12 at 32:15-17 (“[T]here could be some software associated with speech recognition on the CPU.”). Mr. Williamson also admits that [Redacted] . Id. at 42: 3 23. Further, Mr. Williamson explained in his deposition testimony that he has previously collaborated with the speech recognition teams. Id. at 46:11-20. Mr. Williamson explained that his team [Redacted] . Id. at 46:6-12. While this work was not long-term, it suggests that members of the CPU Design team may possess relevant knowledge of the hardware and how Apple's hardware relates to the accused speech recognition features. But, since the asserted patents target speech recognition technology, the Court acknowledges that teams that specialize in Apple's speech recognition software likely possess the most relevant knowledge about Apple's alleged infringement. The Court reaches a similar conclusion for other WDTX-based Apple employees that work on other general-purpose aspects of Apple's hardware.
For [Redacted], the Court does not weigh their presence in the WDTX heavily against transfer. [Redacted] collects test data related to certain features of Apple's Siri Assistant. ECF No. 86-9 at 29. [Redacted] does not design, engineer, sell, or market the accused products. Id. [Redacted] works to ensure that various teams have access to and effectively use computing resources to build machine learning models, including speech recognition models. Id. at 30. But [Redacted] does not build or run machine learning models himself. Id. [Redacted] is involved in annual planning and release management processes for development of software, including speech recognition. Id. at 30-31. But [Redacted] is not involved in the development of the speech recognition software itself. Id. at 31. Based on the evidence provided, [Redacted] may possess some limited knowledge of the accused products, but their work at Apple does not appear to be strongly tied to the issues in this case.
3. Zentian's Witnesses in the United Kingdom
Zentian claims that its witnesses based in the United Kingdom, including all the inventors of the asserted patents, would find this District a more convenient forum. ECF No. 86 at 12. Zentian claims that flights from the United Kingdom are shorter and less expensive than flights to San Francisco. Id. In response, Apple argues that the incremental additional cost for Zentian's witnesses should not weigh heavily in the analysis of this factor. ECF No. 91 at 3.
The Court concludes that Zentian's party witnesses do not weigh in the analysis of this factor. Under Fifth Circuit law, if the distance between a current venue and a proposed venue is more than 100 miles, the inconvenience to witnesses increases in direct relationship to the additional distance they must travel if the matter is transferred. Volkswagen II, 545 F.3d at 317. Under this 100-mile rule, the presence of willing witnesses in United Kingdom would weigh against transfer because these witnesses are closer to Waco than the NDCA. However, the Federal Circuit has stated that courts should not apply the rule “rigidly” in cases where witnesses would be required to travel a significant distance no matter what venue they testify in. In re Apple, 979 F.3d at 1342 (discussing witnesses traveling from New York) (citing Volkswagen II, 545 F.3d at 317). “[T]he inquiry should focus on the cost and inconvenience imposed on the witnesses by requiring them to travel to a distant forum and to be away from their homes and work for an extended period of time.” In re Google, LLC, No. 2021-170, 2021 WL 4427899, at *4 (Fed. Cir. Sept. 27, 2021). While Zentian's willing witnesses are closer to this District, the cost and inconvenience imposed on these witnesses by travelling to a distance forum is similar for both the WDTX and the NDCA. Thus, under Federal Circuit law, the Court does not weigh Zentian's United Kingdom-based employees in the outcome of this factor.
4. Conclusion
The Court finds this factor favors transfer. Apple's software teams working on the accused functionality of the accused products are largely based in the NDCA. Further, Apple's Neural Engine team and a large portion of its CPU design team are based in that district. Because the Court believes that software and hardware is relevant, the Court believes that the majority of the relevant Apple employees resides in the NDCA.
ii 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., No. 6:18- cv-00372, 2019 WL 4743678, at *2 (W.D. Tex. Sept. 10, 2019). “[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 at 1340 (citing In re Genentech, 566 F.3d at 1345).
According to Apple, the relevant sources of proof are in the NDCA. ECF No. 51 at 7. Apple argues that the accused technology was primarily designed and developed in Cupertino. Id. Apple also argues that documents related to marketing and licensing are primarily in the NDCA. Id. In response, Zentian argues that there are many relevant document custodians in the WDTX. ECF No. 86 at 12. Zentian also argues that authors of hardware architecture specifications are in this District. Id. Further, Zentian argues that the CPU and GPU Design Teams write RTL code, which may also be at issue. Id. at 13. Zentian notes that Apple's witnesses admitted that they can remotely access documents, including source code. Id. In its reply, Apple argues that hardware engineers in the WDTX do not produce documents relevant to the speech recognition technology claimed in the asserted patents. ECF No. 91 at 4. With respect to the hardware architecture specifications, Apple notes that the specifications cited by Zentian do not mention speech recognition. Id. Apple further claims that twelve of the twenty technical documents that Zentian investigated in a deposition topic had NDCA-based authors. Id. The Court acknowledges that the Fifth Circuit's decision in In re Planned Parenthood indicates a shift in the analysis of this factor. The Fifth Circuit has recently agreed with a district court that concluded that this factor is neutral because electronic evidence is equally accessible in either forum. In re Planned Parenthood Fed'n of Am., Inc., 52 F.4th 625, 630 (5th Cir. 2022). The Fifth Circuit held that “[t]he location of evidence bears much more strongly on the transfer analysis when . . . the evidence is physical in nature.” Id. But the Federal Circuit has held that it is an error to conclude this factor is neutral because electronic documents are easily accessible in both forums. In re Apple, Inc., No., 2022 WL 1196768, at *4 (Fed. Cir. Apr. 22, 2022). To the extent that these two holdings can be reconciled, the Court concludes that the location of physical evidence is more important to this analysis than the location of where electronic documents are typically accessed. However, the Court still considers the location of document custodians of electronic documents in its analysis of this factor. In re Google LLC, No. 2021-178, 2021 WL 5292267, at *2 (Fed. Cir. Nov. 15, 2021).
Here, physical evidence does not appear to be present in the WDTX or the NDCA, so the Court turns to the electronic evidence. The Court agrees with Apple that its NDCA-based employees, including the employees discussed above with respect to the willing witness factor, likely create and maintain documents that are relevant to this case, including software, hardware, marketing, and licensing documents. See supra section III(A)(i)(1) (discussing software, hardware, marketing, and licensing employees located in the NDCA). The Court also acknowledges that relevant WDTX-based employees, who work on the hardware aspects of the accused products, may create and maintain hardware-related documents in this District. As for the custodians of Apple's technical specifications, the Court agrees with Apple that more of the relevant technical documents are authored by employees based in the NDCA. See ECF No. 91-2 (showing that twelve of twenty of the technical documents investigated by Zentian have authors based in the NDCA and only four documents have authors based in the WDTX).
The Court rejects Zentian's argument that this factor does not favor transfer because Apple's electronic documents are accessible a physical evidence electronically and electronic evidence may be equally accessible in both forums, the Court still considers the relative access in the two forums. In re Apple, Inc., 2022 WL 1196768, at *4.
Because the Court believes that more evidence is created and maintained in the NDCA, the Court concludes that this factor favors transfer.
iii The Availability of Compulsory Process to Secure the Attendance of Witnesses
Under the Federal Rules, a court may subpoena a witness to attend trial only (a) “within 100 miles of where the person resides, is employed, or regularly transacts business in person”; or (b) “within the state where the person resides, is employed, or regularly transacts business in person, if the person . . . is commanded to attend a trial and would not incur substantial expense.” Fed.R.Civ.P. 45(c)(1)(A), (B)(ii). Under this factor, the Court focuses on non-party witnesses whose attendance may need to be secured by a court order.” Fintiv Inc., 2019 WL 4743678, at *14 (citing Volkswagen II, 545 F.3d at 316). This factor “weigh[s] heavily in favor of transfer when more third-party witnesses reside within the transferee venue than reside in the transferor venue.” In re Apple, 581 Fed.Appx. 886, 889 (Fed. Cir. 2014) (citing In re Genentech, 566 F.3d at 1345). The Federal Circuit has held that “when there is no indication that a non-party witness is willing, the witness is presumed to be unwilling and considered under the compulsory process factor.” In re HP Inc., 2018 WL 4692486, at *3 n.1. However, the Fifth Circuit has clarified that “the availability of the compulsory process ‘receives less weight when it has not been alleged or shown that any witness would be unwilling to testify.'” In re Planned Parenthood Fed'n of Am., Inc., 52 F.4th at 630-31 (quoting Hefferan v. Ethicon Endo-Surgery Inc., 828 F.3d 488 (6th Cir. 2016)).
Apple argues that this factor is neutral because it is “not aware of any potential third-party witnesses in this District.” ECF No. 51 at 11. Apple notes that Intel, the third party identified in Zentian's Complaint, is headquartered in the NDCA and some of the Intel engineers identified in documents cited by the Complaint are based in California. Id.
In response, Zentian argues that this factor weighs against transfer because former Apple employees, including [Redacted] . ECF No. 86 at 13. Zentian argues that [Redacted] worked within the CPU Design Group at Apple and interfaced