Case: 21-170 Document: 20 Page: 1 Filed: 09/27/2021
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: GOOGLE LLC,
Petitioner
______________________
2021-170
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Western District of Texas in No. 6:20-
cv-00881-ADA, Judge Alan D. Albright.
______________________
ON PETITION AND MOTION
______________________
Before LOURIE, BRYSON, and TARANTO, Circuit Judges.
PER CURIAM.
ORDER
Plaintiff Sonos, Inc., filed this patent infringement case
against defendant Google LLC in the Waco Division of the
United States District Court for the Western District of
Texas. Google moved to transfer the case to the Northern
District of California. The district court denied the motion.
The court first held that a forum selection clause in a 2013
agreement between the parties was inapplicable to the pa-
tent infringement action before it. The court then held that
Google had failed to make a showing sufficient to justify
transferring the case under
28 U.S.C. § 1404(a).
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2 IN RE: GOOGLE LLC
Google now petitions for a writ of mandamus directing
the district court to transfer the case. We conclude that the
district court’s refusal to transfer the case pursuant to sec-
tion 1404(a) constituted a clear abuse of discretion. We
therefore grant mandamus directing the court to transfer
this case to the Northern District of California. Because
we conclude that the district court misapplied the factors
bearing on the transfer decision, it is unnecessary for us to
address Google’s argument concerning the applicability of
the forum selection clause in the 2013 agreement between
the parties.
I
A
Google presented the following facts in support of its
transfer motion: Two of the four inventors work for Sonos
at its principal place of business in Santa Barbara, Califor-
nia. A third inventor, who no longer works for Sonos, also
resides in California. The fourth inventor, who is not asso-
ciated with Sonos, lives in Boston, Massachusetts. Sonos
does not have any offices or employees in Texas.
Google’s headquarters are in the Northern District of
California. Sonos also maintains offices there. Google
identified a number of employee witnesses who can testify
regarding the development, functionality, and marketing
of the accused products. Several of those witnesses are lo-
cated in the Northern District of California and none are
located in Texas. Google also identified witnesses in the
Northern District of California who are expected to testify
about prior art, and it noted several previous cases in
which it had called such witnesses to testify during trial.
Google added that because three of the named inventors
are located in California, they could be compelled to testify
by the district court in the Northern District of California,
but not by the district court in the Western District of
Texas.
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IN RE: GOOGLE LLC 3
Sonos responded that Google maintains a large campus
in Austin, Texas, within the Western District of Texas.
Sonos suggested that Google’s employees from Austin
might have information material to the dispute in this
case. Sonos also noted that there are several current and
former Google employees in New York and Massachusetts
who could be potential witnesses, and that they are located
closer to the Western District of Texas than to the North-
ern District of California. Sonos added that Andrew
Greene, the former head of Google’s Partnerships & Alli-
ances for Google Cloud, lives in Austin. Based on his title,
Sonos speculated that Mr. Greene might have relevant in-
formation concerning the integration of third-party appli-
cation technology that is pertinent to this case. In addition,
Sonos noted that Google stores documents on data centers
across the country, including in a data center in Midlo-
thian, Texas, which is outside of the Western District of
Texas but is within 100 miles of the federal courthouse in
Waco, Texas.
The district court analyzed Google’s transfer motion by
applying a set of private- and public-interest factors iden-
tified by the United States Court of Appeals for the Fifth
Circuit in In re Volkswagen of America, Inc.,
545 F.3d 304
(5th Cir. 2008) (en banc) (“Volkswagen II”). 1 After
1 The private interest factors are (1) the relative ease of
access to sources of proof; (2) the availability of compulsory
process to secure the attendance of non-party witnesses
whose attendance may need to be compelled by court order;
(3) the relative convenience of the two forums for potential
witnesses; and (4) all other practical problems that make
the trial of a case easy, expeditious, and inexpensive. See
Volkswagen II, 545 F.3d at 315. The public interest factors
are (1) the administrative difficulties flowing from court
congestion; (2) the local interest in having disputes regard-
ing activities occurring principally within a particular
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4 IN RE: GOOGLE LLC
reviewing those factors, the district court concluded that
Google had failed to show that the Northern District of Cal-
ifornia was clearly more convenient for trial than the West-
ern District of Texas. The district court therefore denied
Google’s motion to transfer.
B
At the outset, the district court found that this action
could have been brought in the Northern District of Cali-
fornia, a necessary predicate for the court to consider trans-
ferring the case to that district. The court then made the
following findings regarding the transfer decision:
Based on its view that Google was not currently storing
evidentiary documents in the Northern District of Califor-
nia and that a data center within 100 miles of the Waco
courthouse contains relevant information, the court found
that the ease of access to sources of proof weighs against
transfer.
The district court recognized that testimony from the
Google employees in the Northern District of California
who were responsible for developing the accused products
and had knowledge regarding their functionality was “un-
doubtedly relevant.” And the court also found it unlikely
that Sonos would call as witnesses the large number of
Google employees it identified as working in Austin. The
court noted that Sonos had not identified those witnesses
with any further specificity. Nonetheless, the court found
that the Western District of Texas was a more convenient
forum for the non-party witnesses who were willing to tes-
tify. On that issue, the court relied on its finding that the
Texas forum would be more convenient for four former
district decided in that forum; (3) the familiarity of the fo-
rum with the law that will govern the case; and (4) the
avoidance of unnecessary problems of conflict of laws or in
the application of foreign law. See id.
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IN RE: GOOGLE LLC 5
Google employees who were located in New York and Mas-
sachusetts and one of the inventors who was located in
Massachusetts.
The district court explained that the witnesses in the
northeast “would be more inconvenienced traveling more
than twice the distance—over 1000 additional miles—to
the NDCA compared to the WDTX.” By contrast, the dis-
trict court found that the convenience and cost of attend-
ance for party witnesses located in California is entitled to
little weight because party witnesses are within the control
of the party calling them.
In addressing the compulsory process factor, Google
identified eight non-party individuals and two entities in
the Northern District of California as potential prior-art
witnesses, and Sonos identified two potential prior-art wit-
nesses in the Western District of Texas. The district court,
however, did not regard that factor as bearing on the trans-
fer decision. Citing one of its own prior decisions, the court
expressed the view that prior-art witnesses are “generally
unlikely to testify at trial.” For that reason, the court held,
the location of prior-art witnesses should be accorded little
weight. The court added that Google’s decision to call
prior-art witnesses in previous cases did not “dissuade the
Court from its general practice of ascribing little weight to
such witnesses.”
As for the remaining potential non-party witnesses, the
district court gave no weight to the fact that one of the in-
ventors lived in California because Sonos represented that
the inventor was willing to testify without being subpoe-
naed. The court also found that Sonos had failed to identify
any potential third-party witnesses who were unwilling to
testify voluntarily. However, the court gave decisive
weight to the fact that former Google employee Andrew
Greene was located in Austin and was therefore subject to
the court’s compulsory process. Although Google stated
that Mr. Greene had not worked on the partnership
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6 IN RE: GOOGLE LLC
account involving Sonos, the court concluded that, in light
of Mr. Greene’s former title as head of “Partnerships & Al-
liances, Google Cloud,” it was likely that he would have in-
formation concerning the “integration of third-party
applications.”
The district court acknowledged that the Northern Dis-
trict of California had a local interest in resolving this case
because of Google’s presence in that district and Sonos’s
lack of any presence in the Western District of Texas. How-
ever, because Google had a significant presence in the
Western District of Texas by virtue of its campus in Austin,
the district court weighed the local interest factor only
slightly in favor of transfer.
Finally, the district court found that the court conges-
tion factor weighed against transfer. In making that find-
ing, the court relied on a comparison of the median time-
to-trial statistics for the transferor and transferee dis-
tricts. 2
II
Our review is governed by the law of the regional cir-
cuit, which in this case is the Fifth Circuit. See In re TS
Tech USA Corp.,
551 F.3d 1315, 1319 (Fed. Cir. 2008). Un-
der Fifth Circuit law, the governing principles are well set-
tled. Section 1404(a) authorizes a court to transfer a civil
action “[f]or the convenience of parties and witnesses, in
the interest of justice[.]” Fifth Circuit law provides that a
motion to transfer venue pursuant to section 1404(a)
2 The district court found the remaining factors to be
neutral. With respect to the familiarity of the forum with
the law that will govern the case, Google argued that this
factor weighed in favor of transfer, given that California
law would apply to the interpretation of the cooperation
agreement. Because that factor would not affect our anal-
ysis, we do not address it here.
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IN RE: GOOGLE LLC 7
should be granted if “the movant demonstrates that the
transferee venue is clearly more convenient.” In re
Radmax, Ltd.,
720 F.3d 285, 288 (5th Cir. 2013) (quoting
Volkswagen II, 545 F.3d at 315) (internal quotation marks
omitted).
A district court enjoys broad discretion in making a
transfer determination. See In re Vistaprint Ltd.,
628 F.3d
1342, 1344 (Fed. Cir. 2010). That discretion, however, is
subject to limits. When a district court’s denial of a motion
to transfer clearly contravenes governing legal standards,
we have issued mandamus to overturn the denial of trans-
fer. See, e.g., In re Samsung Elecs. Co.,
2 F.4th 1371 (Fed.
Cir. 2021); In re Apple Inc.,
979 F.3d 1332 (Fed. Cir. 2020).
A
The district court acknowledged that the convenience
of the witnesses is probably the single most important fac-
tor in transfer analysis. See In re Genentech, Inc.,
566 F.3d
1338, 1343 (Fed. Cir. 2009). However, the court signifi-
cantly qualified that observation. Citing one of its own
prior opinions, the court stated that “[t]he convenience of
party witnesses is given little weight.”
Google identified a number of potential witnesses lo-
cated in the Northern District of California, including wit-
nesses who were responsible for developing the accused
products and functionalities. The district court noted that
even though those witnesses’ potential testimony was “un-
doubtedly relevant,” the court stated that “the vast major-
ity [of those witnesses] are party witnesses,” and that the
court “does not assign great weight to these witnesses be-
cause Google can compel their testimony.”
While it is true that the witnesses in the Northern Dis-
trict of California are largely affiliated with the parties,
that does not negate the inconvenience and cost to those
individuals to travel a significant distance to testify. We
have rejected the district court’s reliance on the fact that a
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8 IN RE: GOOGLE LLC
party’s ability to compel the testimony of its employees sup-
ports assigning little or no weight to the convenience and
cost to those witnesses. See In re Juniper Networks, Inc.,
No. 2021-160, slip op. at 8 (Fed. Cir. Sept. 27, 2021); In re
Hulu, LLC, No. 2021-142,
2021 WL 3278194, at *5 (Fed.
Cir. Aug. 2, 2021). As we explained in Hulu: “Although an
employer’s cooperation in allowing an employee to testify
may diminish certain aspects of inconvenience to the em-
ployee witness . . . it hardly eliminates the inconvenience”
of requiring the employee to travel.
2021 WL 3278194 at
*5; see also Samsung, 2 F.4th at 1379 (holding that a dis-
trict court’s § 1404(a) analysis “must consider” the conven-
ience of “possible party witnesses”).
The district court considered the “cost of attendance for
willing witnesses” factor to weigh against transfer primar-
ily due to the convenience of four former Google employees
and the third-party inventor of two of the asserted patents,
all of whom are located in the northeastern United States.
The court found that those witnesses would be more incon-
venienced by having to travel to the Northern District of
California than to the Western District of Texas.
In making that assessment, the district court relied on
the Fifth Circuit’s “100-mile rule.” The Fifth Circuit has
stated that “[w]hen the distance between an existing venue
for trial of a matter and a proposed venue under § 1404(a)
is more than 100 miles, the factor of inconvenience to wit-
nesses increases in direct relationship to the additional dis-
tance to be traveled.” Volkswagen II, 545 F.3d at 317
(quoting In re Volkswagen AG,
371 F.3d 201, 204–05 (5th
Cir. 2004) (“Volkswagen I”)). The rationale behind that
rule is that “the task of scheduling fact witnesses so as to
minimize the time when they are removed from their reg-
ular work or home responsibilities gets increasingly diffi-
cult and complicated when the travel time from their home
or work site to the court facility is five or six hours one-way
as opposed to 30 minutes or an hour.” Volkswagen I,
371
F.3d at 205.
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IN RE: GOOGLE LLC 9
We have been mindful of that rationale for that rule,
and we have rejected a “rigid[]” application of the rule
when “witnesses . . . will be required to travel a significant
distance no matter where they testify” and when all wit-
nesses would be inconvenienced by having to leave home to
attend trial. Genentech,
566 F.3d at 1344. In light of the
purpose underlying the rule, the inquiry should focus on
the cost and inconvenience imposed on the witnesses by re-
quiring them to travel to a distant forum and to be away
from their homes and work for an extended period of time.
Moreover, even though the distance from the north-
eastern United States to California is greater than the dis-
tance to Waco, Texas, the record before the district court
does not show that the total travel time in each case is sig-
nificantly different. There is no major airport in the Waco
Division of the Western District of Texas, and the Waco
courthouse is more than 100 miles from the nearest airport
with direct flights to the northeast U.S. See App. 1022. In
this regard, time is a more important metric than distance.
Our cases have emphasized that when there are nu-
merous witnesses in the transferee venue and the only
other witnesses are far outside the plaintiff’s chosen forum,
the witness-convenience factor favors transfer. In Genen-
tech, for example, we stated that where “a substantial num-
ber of material witnesses reside within the transferee
venue . . . and no witnesses reside within the” transferor
venue, a district court “clearly err[s] in not determining”
the convenience of willing witnesses “to weigh substan-
tially in favor of transfer.” Genentech,
566 F.3d at 1345.
In recent cases, we have applied those principles in cir-
cumstances not materially different from those in this case.
In In re Apple, 979 F.3d at 1342, the petitioner argued that
the district court in the Western District of Texas erred in
not finding the witness-convenience factor to favor transfer
to the Northern District of California because a number of
the parties’ witnesses were located there and no witness
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10 IN RE: GOOGLE LLC
was located in Texas. The district court had given more
weight to the fact that the inventors and patent prosecutor
residing in New York would “need to travel a greater dis-
tance to reach” the Northern District of California than the
Western District of Texas. Id. In rejecting the district
court’s analysis, we explained that those witnesses “will
likely have to leave home for an extended period” whether
or not the case was transferred, and thus would “only be
slightly more inconvenienced by having to travel to Califor-
nia than to Texas.” Id. (internal quotation marks omitted).
Likewise, in In re TracFone Wireless, Inc., 852 F. App’x
537, 539 (Fed. Cir. 2021), the defendant identified a sub-
stantial number of witnesses in the transferee venue in
Florida, while no witness was located in the Western Dis-
trict of Texas. The district court nonetheless held that the
willing-witness factor weighed against transfer on the
ground that a transfer would double the distance traveled
by potential non-party witnesses in Arizona and Minnesota
and therefore would double their inconvenience. Id. We
held that, “[a]s in Apple, the district court here clearly mis-
applied the law in finding that any inconvenience to these
individuals outweighed the convenience of having several
party witnesses be able to testify at trial without having to
leave home.” Id. at 540.
This case fits squarely within that line of precedent.
The district court here found that the willing witness factor
weighed against transfer. Yet it based that finding not on
any witnesses who were located in the Western District of
Texas, but rather on the presence of potential witnesses
who live far outside both venues in New York and Massa-
chusetts. As was the case in Apple and TracFone, the dis-
trict court’s application of the 100-mile rule would result in
all identified witnesses having to travel away from their
home and work in order to testify in Texas, which would
“produce results divorced from” the rule’s underlying ra-
tionale. TracFone, 852 F. App’x at 539.
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IN RE: GOOGLE LLC 11
While Sonos listed a large number of potential wit-
nesses from Google’s Austin campus, the district court
noted that Sonos did not indicate with specificity what rel-
evant evidence any of those witnesses would have to offer.
Even from the perspective of the district court, Sonos’s list
of Google employees therefore did not buttress its claim for
retaining the case in the Western District of Texas.
For those reasons, we agree with Google that the dis-
trict court abused its discretion by not weighing the con-
venience-to-witnesses factor strongly in favor of transfer.
B
Another factor that we have emphasized as important
in transfer analysis is the value of having localized inter-
ests adjudicated at home. Google argues that the district
court abused its discretion in analyzing this factor. We
agree.
Although the district court properly weighed the local
interest factor in favor of transfer, it held that Google’s
presence in the Western District of Texas lessened the im-
portance of that factor. That was error. The district court
did not find that Google’s operations in the Western Dis-
trict of Texas had any connection to the events giving rise
to this case. Rather, the district court merely relied on
Google’s general presence in that forum district. As such,
the court failed to conduct the proper inquiry. See Apple,
979 F.3d at 1345 (noting that this factor “most notably re-
gards . . . the ‘significant connections between a particular
venue and the events that gave rise to a suit’” (quoting In re
Acer Am. Corp.,
626 F.3d 1252, 1256 (Fed. Cir. 2010) (em-
phasis in Apple)).
The district court concluded, in essence, that Google
had sufficient connections to Austin to make it suitable to
try the case in the Western District of Texas. Without fur-
ther inquiry into the particular events giving rise to the
case, however, the district court’s analysis “improperly
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12 IN RE: GOOGLE LLC
conflate[d] the requirements for establishing venue under
28 U.S.C. § 1400(b) and the requirements for establishing
transfer under § 1404(a).” Apple, at 979 F.3d at 1346.
Because the accused products were designed and devel-
oped in the transferee venue and are not related to Google’s
presence in Texas, we agree that the local interest factor
should have been weighted strongly in favor of transfer.
See id. at 1345.
C
None of the remaining factors support the district
court’s conclusion that Google failed to show that the
Northern District of California is a clearly more convenient
forum for trial than the Western District of Texas.
1. In concluding that the sources-of-proof factor disfa-
vored transfer, the district court reasoned that: (1) Google
no longer maintains evidentiary documents in the North-
ern District of California; (2) Google’s evidentiary records
are stored in data centers located around the country; (3)
one of those data centers is located in Midlothian, Texas, in
the Northern District of Texas, while no such center is lo-
cated in the Northern District of California; and (4) the rel-
ative proximity of the data center to the Western District
of Texas makes accessing those electronic records from the
Western District of Texas easier than it would be if the case
were transferred. Neither that reasoning nor the facts un-
derlying it support the district court’s conclusion.
Google’s declaration, on which the district court relied,
cannot fairly be read as constituting an admission that
Google does not keep sources of proof at its headquarters
in the transferee venue. Google stated that “documents in
Google’s possession about its products and services are nor-
mally created and maintained by the employees working
on those products and services,” and because “[t]he employ-
ees with relevant knowledge of this litigation are located
primarily in the San Francisco Bay Area . . . the relevant
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IN RE: GOOGLE LLC 13
documents in this case would be created and maintained in
the San Francisco Bay Area.” App. 625. Nothing in that
or any other representation that Google made suggests
that Google no longer maintains relevant records in its of-
fices in the Northern District of California.
Nor does the fact that Google stores documents in elec-
tronic form at data centers around the country weigh in fa-
vor of holding trial in Texas. We have held that the fact
that some evidence is stored in places outside both the
transferor and the transferee forums does not weigh
against transfer. See In re Toyota Motor Corp.,
747 F.3d
1338, 1340 (Fed. Cir. 2014); In re HP Inc., 826 F. App’x 899,
902 (Fed. Cir. 2020). There is therefore no sound basis to
weigh the sources of proof factor against transfer; if any-
thing, that factor weighs in favor of transfer.
2. In holding that its ability to compel unwilling wit-
nesses provided a comparative advantage for the trans-
feror forum over the transferee forum, the district court
categorically rejected the argument that the California
court should be favored because it has subpoena power over
several third-party prior-art witnesses who are located in
the Northern District of California. Despite Google’s his-
tory in other cases, the court assumed that it was unlikely
that prior-art witnesses would be called in this case. For
that reason, the court held, those witnesses were entitled
to little weight. The court also weighed against transfer
the fact that Google had failed to come forward with evi-
dence indicating that those witnesses were unwilling to
testify. The district court’s conclusion on that issue cannot
be supported by the reasons provided.
Hulu recently disapproved of the rejection of prior-art
witnesses under circumstances similar to those in this
case. See
2021 WL 3278194, at *3. As Google did here,
Hulu identified prior-art witnesses it expected to call at
trial. In Hulu, as in this case, the district court substituted
its own assumption that prior-art witnesses were unlikely
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14 IN RE: GOOGLE LLC
to testify at trial in place of any specific reason to believe
that those identified potential witnesses would not testify.
Hulu held that such a categorical rejection of those wit-
nesses entirely untethered to the facts of the particular
case was an abuse of discretion.
Id. Hulu also rejected the
proposition, adopted by the district court in this case, that
the compulsory process factor is irrelevant unless the wit-
nesses in question have expressly indicated an unwilling-
ness to testify voluntarily.
Id. at *4. The court therefore
erred in not giving weight to Google’s prior-art witnesses.
The district court found the potential testimony of
Google’s former executive Andrew Greene to be “the deci-
sive element” that “tips [the compulsory-process] factor
against transfer.” Sonos, however, was not at all specific
about what testimony it expected to elicit from Mr. Greene,
or even if he possesses knowledge of the facts relevant to
this infringement action. Sonos’s only support for the po-
tential relevance of Mr. Greene’s testimony is what ap-
pears to be Mr. Greene’s “LinkedIn” page, which states that
he was “Head of Partnerships & Alliances, Google Cloud”
for three and one-half years between 2016 and 2019.
Appx1829. The likelihood that Mr. Greene would provide
relevant evidence for Sonos is thus highly speculative. And
even without second-guessing the district court’s conclu-
sion in that regard, we cannot say that the district court’s
ability to compel him to testify under the circumstances of
this case is entitled to “decisive weight.”
3. With respect to the court-congestion factor that the
district court held to weigh against transfer, we have held
that when other relevant factors weigh in favor of transfer
or are neutral, “then the speed of the transferee district
court should not alone outweigh all of those other factors.”
Genentech,
566 F.3d at 1347. Where, as here, the district
court has relied on median time-to-trial statistics to sup-
port its conclusion as to court congestion, we have charac-
terized this factor as the “most speculative” of the factors
bearing on the transfer decision. Id.; see also Apple, 979
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IN RE: GOOGLE LLC 15
F.3d at 1344 n.5. Under the approach to this factor we
adopted in Genentech, the district court’s speculation about
what might happen with regard to the speed of adjudica-
tion is plainly insufficient to warrant keeping this case in
the Texas forum given the striking imbalance favoring
transfer based on the other factors. 3
III
In sum, as in other recent cases in which this court has
granted mandamus on the issue of transfer, the center of
gravity of this action is clearly in the transferee district,
not in the Western District of Texas. And as in those cases,
several of the most important factors bearing on the trans-
fer decision strongly favor the transferee court, and no fac-
tor favors retaining the case in the transferor court. See In
re Nintendo Co.,
589 F.3d 1194, 1198 (Fed. Cir. 2009) (“This
court has held and holds again in this instance that in a
case featuring most witnesses and evidence closer to the
transferee venue with few or no convenience factors favor-
ing the venue chosen by the plaintiff, the trial court should
3 Here, the median time to trial for all judges in the
two districts is not dramatically different, but it favors the
Western District of Texas. However, as the district court
noted, the judge in the transferee court who would pre-
sumptively be assigned the case is William H. Alsup, who
has been assigned the related declaratory judgment case
between the parties. Statistics show that Judge Alsup’s
average time to trial is shorter than Judge Albright’s.
Moreover, as of late June 2021, Judge Alsup had signifi-
cantly fewer cases on his docket (157 cases) than did Judge
Albright (1053 cases). App. 2224, 2227. At minimum,
then, it is not clear that the time to trial in the transferor
court would be shorter than the time to trial in the trans-
feree court.
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16 IN RE: GOOGLE LLC
grant a motion to transfer.” (citation omitted)). We there-
fore grant Google’s petition directing transfer of the case.
Accordingly,
IT IS ORDERED THAT:
(1) The petition is granted. The district court’s order
denying Google’s motion to transfer is vacated, and the dis-
trict court is directed to grant the transfer motion.
(2) Google’s motion to waive the requirements of Fed-
eral Circuit Rule 25.1(d)(1) (ECF No. 4) is granted. ECF
No. 3 is accepted for filing.
FOR THE COURT
September 27, 2021 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
s35
cc: United States District Court for the Western District of
Texas
