United States District Court, D. Delaware
SYMANTEC CORPORATION, et al.
technology company travelled approximately 2, 900 miles to
sue another technology company headquartered seven miles away
from it in Northern California over disputed patent rights.
The defendant technology company now seeks to transfer this
patent case to the Northern District of California which
houses both parties' witnesses and headquarters. The
parties created the challenged technology outside this
District. The engineers and witnesses are outside this
District. The only nexus is most of the parties are
incorporated here. While the companies may seek our venue as
Delaware corporations, we carefully review a motion to
transfer when one of the Delaware corporations argues
transfer to the parties' principal place of business will
serve the interests of the parties and Federal Rule of Civil
Procedure 1. Upon applying our court of appeals'
well-settled factors guiding transfer for convenience when
venue is appropriate here, we find the majority of the
factors weigh in favor of transfer. We enter the accompanying
Order granting the Defendant's motion to transfer to the
Northern District of California.
Corporation and Symantec Limited (together
"Symantec") offer network security
products. "[R]elative newcomer" Zscaler
also offers products in the network security
market. Symantec sues Zscaler alleging its
cloud-based security technology infringed on seven of
Symantec's patents. Zscaler now seeks to transfer venue to
the Northern District of California.
Corporation is incorporated in Delaware with its principal
place of business in Mountain View, California and Symantec
Limited is organized in Ireland and its principal place of
business is in Dublin, Ireland. Symantec sells its products
around the world, employs more than 11, 000 people around the
world, and has revenues of $ 4 billion dollars in
2017. Symantec does not have officers in
is incorporated in Delaware with its principal of business in
San Jose, California. 238 of Zscaler's 793 employees work in
San Jose, California including 106 of 110 of engineers and
technical staff who work on allegedly infringing cloud-based
security technology. Zscaler has no employees or offices in
Delaware. Zscaler's employee, Dr. Sinha,
declares "[substantially all of the research, software
coding, and development" including the design and
creation of the allegedly infringing technology is done in
San Jose, California and India.Zscaler also declares its
2017 revenues "were a fraction of $4 billion" but
does not enlighten us to how large or small of a
fraction. Over 15 million consumers around the
world use Zscaler's products.
counsel, Attorney Heaps, also declares the named inventors of
the seven patents Zscaler allegedly infringes are not in
Delaware: three are in California, three in Utah, one in
Texas, Massachusetts, Canada, Singapore, and the rest have an
moves to transfer venue to the Northern District of
California. Venue is proper in this District and Symantec
does not dispute venue is also proper in the Northern
District of California where both parties have their
principal place of business. We may transfer venue under 28
U.S.C. § 1404(a) if we find it appropriate "[f]or
the convenience of parties and witnesses, in the interests of
justice." Because we do not "lightly disturb"
Symantec's choice of venue, Zscaler bears the burden of
establishing venue in the Northern District of California
better serves the interests of justice and is the more
court of appeals described the relevant private and public
interests we consider together and use our discretion to
determine whether a 1404(a) transfer is
Jumara private interest factors weigh in favor of
private interest factors weigh in favor of transfer.
forum of preference.
we accord deference to Symantec's choice, "[w]hen a
plaintiff brings its charges in a venue that is not its home
forum ... that choice of forum is entitled to less
deference." In Memory Integrity, LLC v. Intel
Corporation, the plaintiff corporation organized under
Delaware law with a principal place of business in Delaware
but had no actual employees, facilities, or operations here.
It sued another corporation organized under Delaware law but
with a principal place of business in Oregon. The court
granted defendant's motion to transfer venue and gave the
plaintiffs forum preference minimal weight against transfer
"conclude[ing] [plaintiff] cannot reap the full benefits
of heightened deference as a result of its minimal connection
to Delaware." As a Memory Integrity, both
Symantec and Zscaler are Delaware corporations and Symantec
does not have facilities, employees, or operations here.
Symantec's preference for Delaware weighs minimally
against transferring venue.
also argues Symantec's previous attempts to transfer
venue from this District to the Northern District of
California also weigh against Symantec's preference.
Symantec's litigation strategy in other cases is not
relevant to our "individualized, case-by-case
consideration of convenience and
Zscaler's forum preference.
prefers to litigate in the Northern District of California
where both Zscaler and Symantec have their principal places
of businesses. In fact, Symantec and Zscaler's
headquarters are seven miles apart in the Northern District
of California. Zscaler's preference weighs in favor
of transferring venue but we accord its preference less
weight than Symantec's preference.
Whether the claim arose elsewhere.
35 U.S.C. § 271(a), Symantec's claims arose
"wherever someone has committed acts of
infringement" but courts hold "infringement claims,
however, have even deeper roots in the forum where the
accused products were developed." Zscaler, as
an international company, sells its allegedly infringing
products to customers in Delaware so claims do arise here.
Importantly, Zscaler declares, and Symantec does not dispute,
"substantially all of the research, software coding and
development, " as well as the design and creation of the
allegedly infringing technology took place in San Jose,
California or India. This factor weighs in favor of transfer
because Symantec's claims have "deeper roots"
in the Northern District of California where Zscaler designed
and created the allegedly infringing technology.
convenience of the parties.
consider the "(1) the parties' physical location;
(2) the associated logistical and operational costs to the
parties' employees in traveling to Delaware (as opposed
to the proposed transferee district) for litigation purposes;
and (3) the relative ability of each party to bear these
costs in light of its size and financial
Delaware corporations, we note "the inconvenience of
litigating here is somewhat less than the court would
ordinarily presume it to be" but the fact parties both
have their principal places of business in the Northern
District of California makes it weigh in favor of
transfer.The associated logistical and operational
costs for employees to travel to Delaware would be
complicated and more expensive than from their principal
places of business within the Northern District of California
to the San Jose courthouse.
final factor is neutral because both corporations are large
international corporations able to bear the costs of
litigation. This is not a David and Goliath situation. While
Zscaler declares it makes a "fraction" of
Symantec's $4 billion dollar revenue in 2017, that
fraction could be three-fourths or $3 billion dollars.
Overall, this factor weighs in favor of transfer.
convenience of the witnesses.
consider the convenience of the witnesses "but only to
the extent that the witnesses may actually be unavailable for
trial in one of the fora.' In this factor we do not
consider witnesses employed by the parties but necessary