Case 5:21-cv-04653-BLF Document 102 Filed 04/15/22 Page 1 of 8
`
`BAKER BOTTS L.L.P.
`Jeremy J. Taylor (SBN 249075)
`jeremy.taylor@bakerbotts.com
`Arya Moshiri (SBN 324231)
`arya.moshiri@bakerbotts.com
`101 California St., Ste. 3600
`San Francisco, CA 94111
`Telephone: 415.291.6200
`Facsimile: 415.291.6300
`Kurt M. Pankratz (pro hac vice)
`Bethany R. Salpietra (pro hac vice)
`kurt.pankratz@bakerbotts.com
`bethany.salpietra@bakerbotts.com
`2001 Ross Ave., Ste. 900
`Dallas, TX 75201
`Telephone: 214.953.6500
`Facsimile: 214.953.6503
`Attorneys for Plaintiff Lyft, Inc.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`LYFT, INC.
`
`v.
`
`Plaintiff,
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Defendant.
`
`Case No. 5:21-cv-04653-BLF (SVK)
`
`PLAINTIFF LYFT, INC.’S RESPONSE TO
`AGIS SOFTWARE DEVELOPMENT
`LLC’S MOTION FOR LEAVE TO AMEND
`INFRINGEMENT CONTENTIONS
`PURSUANT TO PATENT LOCAL RULE
`3-6
`
`Date: June 2, 2022
`Time: 10:00 a.m.
`Judge: Hon. Beth Labson Freeman
`Trial Date: October 16, 2023
`Courtroom: 3, Fifth Floor
`
`LYFT’S RESPONSE TO AGIS MOTION
`TO AMEND INFRINGEMENT CONTENTIONS
`
`
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`Case 5:21-cv-04653-BLF Document 102 Filed 04/15/22 Page 2 of 8
`
`I.
`
`INTRODUCTION
`Plaintiff AGIS Software Development LLC (“AGIS”) seeks to amend its deficient
`infringement contentions but cannot make a “timely showing of good cause,” as required by the Patent
`Local Rules, because it seeks to add publicly accessible information that it could have added in its
`original contentions, and it seeks to cure a deficiency that it was on notice of since at least July 2021.
`By way of background, in May 2021, AGIS served Infringement Contentions in the Eastern
`District of Texas (“EDTX Action”), accusing only Defendant Lyft, Inc.’s (“Lyft”) iOS applications.
`Shortly afterwards, in July 2021, Lyft notified AGIS that its infringement contentions only properly
`accused the iOS applications and repeatedly cautioned AGIS over the next several months that its
`boilerplate language and sparce references to Android failed to properly accuse Lyft’s Android
`applications. AGIS did nothing in response. In November 2021, Lyft filed a motion in the EDTX
`Action to strike AGIS’s infringement allegations against any product other than Lyft’s iOS
`applications, but before the motion could be decided, the EDTX Action was dismissed for improper
`venue.
`Despite this well-documented history and being well aware that its infringement contentions
`failed to accuse any products other than Lyft’s iOS applications, in February 2022, AGIS served
`infringement contentions in this case that largely tracked its infringement contentions from the EDTX
`Action, again only accusing Lyft’s iOS applications. AGIS has been on notice that its infringement
`theories were only directed at Lyft’s iOS applications since at least May 2021, and it has not identified
`any reason why it could not have accused Lyft’s Android applications in February 2022 by its deadline
`to serve infringement contentions if it intended to do so. AGIS now belatedly attempts to remedy this
`problem—nearly eight months after Lyft first identified it to AGIS—by adding new allegations against
`Lyft’s Android applications via 86 screenshots that it obtained through public sources and added
`throughout AGIS’s first amended infringement contentions. AGIS provides no explanation, much less
`good cause, for these untimely additions. Because AGIS has not provided a timely showing of good
`cause, as required under the Patent Local Rule to amend its infringement contentions, Lyft respectfully
`requests the Court deny AGIS’s motion for leave to amend its infringement contentions.
`
`LYFT’S RESPONSE TO AGIS MOTION
`TO AMEND INFRINGEMENT CONTENTIONS
`
`1
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`Case 5:21-cv-04653-BLF Document 102 Filed 04/15/22 Page 3 of 8
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`II.
`
`BACKGROUND
`On May 19, 2021, AGIS served its infringement contentions in the EDTX Action, involving
`the same patents at issue in this case, in which the contentions largely mirror the infringement
`contentions served in this case in February 2022. Ex. A (comparing the EDTX and NDCA
`infringement contentions). In its May 2021 contentions, AGIS accused and provided element-by-
`element charts for Lyft’s iOS applications, as required under the EDTX Patent Rules, but included
`only boilerplate references to Android, Blackberry, and Windows Mobile at the top of its claim charts
`and occasional reference to Lyft’s Android applications in the claim charts. See Dkt. 78-13 at A-1
`(May 2021 contentions) (“[T]he Accused Products comprise the Lyft application installed on all
`Android, iOS, Blackberry, and Windows Mobile based mobile devices . . . and any variants thereof.”).
`AGIS’s boilerplate language was patently deficient: Lyft does not even offer applications for
`Blackberry or Windows Mobile devices. Not surprisingly, AGIS’s infringement claim charts in both
`the EDTX Action and this case lack element-by-element allegations against Android, Blackberry, or
`Windows Mobile applications, as required by the Patent Local Rules, and only provide element-by-
`element infringement allegations against Lyft’s iOS applications.
`Throughout the EDTX Action, Lyft repeatedly notified AGIS that its contentions were
`deficient as to any non-iOS Lyft product, including Android. For example, on July 21, 2021, counsel
`for Lyft sent a letter to counsel for AGIS stating that “[t]he infringement charts appear to only
`specifically identify where elements of each asserted claim is found within the accused Lyft iOS App
`without evidence or explanation for how the allegations against the iOS app could apply to any other
`application, service, or server.” See Ex. B at 1 (July 21, 2021 Taylor email). Similarly, on August 6,
`2021, Lyft informed AGIS that the contentions “only properly accuse Lyft’s iOS apps of
`infringement.” Ex. C at 1 (Aug. 6, 2021 Salpietra letter); see also id. (“Indeed, AGIS’s contentions
`fail to identify any evidence concerning allegedly infringing Android, Blackberry, or Windows Mobile
`apps.”).
`On September 27, 2021, AGIS amended its infringement contentions in the EDTX Action, but
`did not correct this issue; the amended contentions still only provided a complete infringement theory
`
`LYFT’S RESPONSE TO AGIS MOTION
`TO AMEND INFRINGEMENT CONTENTIONS
`
`2
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`Case 5:21-cv-04653-BLF Document 102 Filed 04/15/22 Page 4 of 8
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`for Lyft’s iOS applications. See Ex. D. Shortly thereafter, on October 5, 2021, Lyft again informed
`AGIS that its amended contentions only accused Lyft’s iOS applications. Ex. E at 9 (Oct. 5, 2021
`Salpietra letter) (“AGIS has only properly accused Lyft’s iOS products of infringement.”). In
`November 2021, AGIS served second amended infringement contentions that, like its earlier
`contentions, continued to provide a complete infringement theory only for Lyft’s iOS applications.
`Ex. F.
`On November 3, 2021, Lyft filed a motion to strike AGIS’s first amended infringement
`contentions as deficient to the extent AGIS sought to accuse infringement based on Lyft’s Android
`applications. Ex. G. Specifically, Lyft argued that AGIS’s infringement allegations should be limited
`to Lyft’s iOS applications because AGIS repeatedly failed to properly accuse the Android applications.
`Id. at 7-12. The Court did not rule on this issue because it dismissed the case for improper venue on
`January 19, 2022, before the motion to strike could be decided. Ex. H.
`In the present case, AGIS served infringement contentions on February 25, 2022. Dkt. 84,
`Exs. A-F. These contentions largely tracked the contentions in the EDTX Action, and again provided
`a complete infringement theory only against Lyft’s iOS applications. Then, on March 18, 2022, nearly
`a month past its deadline and eight months after it was initially put on notice of the lack of Android
`contentions, AGIS provided new infringement contentions that seeks to add 86 screenshots of Lyft’s
`Android applications in an attempt to finally provide a complete infringement theory against the Lyft
`Android applications. Compare Dkt. 84, Exs. G-L (March 2022 contentions), with Dkt. 84, Exs. A-F
`(February 2022 contentions). AGIS did not articulate any reason for why these additions are being
`made now and could not be made by its original deadline or in any of its earlier amended infringement
`contentions.
`In parallel, AGIS removed many screenshots pertaining to Lyft’s iOS applications and stated
`that it was no longer accusing Lyft’s iOS applications, in apparent response to Lyft adding a breach
`of contract claim to its amended complaint, even though AGIS has been aware of this issue since at
`least November 2021. Despite AGIS’s attempt to wholesale swap Lyft’s iOS applications for Lyft’s
`Android applications, AGIS’s motion for leave to amend should be denied as futile because the
`
`LYFT’S RESPONSE TO AGIS MOTION
`TO AMEND INFRINGEMENT CONTENTIONS
`
`3
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`Case 5:21-cv-04653-BLF Document 102 Filed 04/15/22 Page 5 of 8
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`amended contentions still fail to adequately accuse the Lyft Android applications. AGIS has failed to
`provide an element-by-element infringement chart for Lyft’s Android applications. At least one claim
`element in each of the asserted patents includes only a screenshot of Lyft’s iOS applications without
`any image of Lyft’s Android applications. See Dkt. 84-9 (Ex. H) at A-28 to A-31, A-37 to A-41; Dkt.
`84-10 (Ex. I) at B-40 to B-43, B-60 to B-65; Dkt. 84-12 (Ex. K) at D-12 to D-14, D-93 to D-94; Dkt.
`84-13 (Ex. L) at E-27 to E-29.
`III.
`LEGAL STANDARD
`Patent Local Rule 3-6 requires AGIS to provide a “timely showing of good cause” to amend
`its infringement contentions. P.L.R. 3-6. The moving party must demonstrate both “(1) diligence in
`discovering the basis for amendment; and (2) diligence in seeking amendment once the basis for
`amendment has been discovered.” Positive Techs., Inc. v. Sony Elecs., Inc., No. C 11-2226 SI, 2013
`WL 322556, at *2 (N.D. Cal. Jan. 28, 2013). The moving party, AGIS, bears the burden of establishing
`diligence. O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1366 (Fed. Cir. 2006).
`Where the moving party is unable to show diligence, there is “no need to consider the question of
`prejudice.” Id. at 1368.
`IV.
`ARGUMENT
`AGIS purports to amend its infringement contentions solely to clarify that “AGIS does not
`accuse any Lyft iOS applications or any Apple products,” Mot. at 4—which Lyft does not oppose—
`but AGIS conveniently omits that it also seeks to add a large number of screenshots showing Lyft’s
`Android applications without any explanation of why it has good cause to do so. Contrary to the
`suggestion in its motion, AGIS does not make minor additions in its March 2022 amended contentions:
`it seeks to include more than double the number of Android screenshots in some of the claim charts
`compared to its February 2022 contentions. Compare, e.g., Dkt. 84-3 (Ex. B), with Dkt. 84-9 (Ex. H).
`Indeed, if AGIS was correct that its initial contentions “repeatedly identif[ied] and rel[ied] on Lyft’s
`Android applications” (Mot. at 4), adding 86 screenshots of Lyft’s Android applications would not be
`needed.
`
`LYFT’S RESPONSE TO AGIS MOTION
`TO AMEND INFRINGEMENT CONTENTIONS
`
`4
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`Case 5:21-cv-04653-BLF Document 102 Filed 04/15/22 Page 6 of 8
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`AGIS cannot show that it acted timely in making this amendment. As discussed above, Lyft
`first put AGIS on notice in July 2021 that AGIS’s infringement contentions failed to accuse any Lyft
`Android application. Lyft went on to inform AGIS of this issue twice more, and since then, AGIS has
`served infringement contentions three additional times before its latest attempt to amend its
`contentions again in March 2022. AGIS has had ample time to look into Lyft’s Android applications
`and properly accuse it in this action through its infringement contentions, but it failed to do so in a
`timely manner, despite being on notice of this issue through Lyft’s repeated communications and
`formal motion in the EDTX Action. Instead, AGIS waited until March 18, 2022, nearly a month after
`its deadline, to add infringement contentions against Lyft’s Android applications.
`Nor can AGIS show it was diligent in discovering the basis for the amendment and diligent in
`seeking amendment once that basis has been discovered. Lyft’s Android application has always been
`publicly available, and AGIS only seeks to add screenshots from the publicly available applications,
`which AGIS could have included in its contentions at any time previously. This Court has similarly
`rejected delayed attempts to amend infringement contentions, even early in the case, before the parties
`have filed briefing on claim construction. See, e.g., Oyster Optics, LLC v. Ciena Corp., No. 20-cv-
`02354-JSW(LB), 2022 WL 561931, at *4 (N.D. Cal. Feb. 24, 2022) (denying Oyster’s motion to
`amend infringement contentions when Ciena notified Oyster in September 2020 that infringement
`contentions for non-WaveLogic 5 Nano products were insufficient, and Oyster failed to amend
`contentions before case was stayed in April 2021because Oyster had the information to do so in
`September 2020); GoPro, Inc. v. 360Heros, Inc., No. 16-cv-01944-SI, 2017 WL 1278756, at *2-3
`(N.D. Cal. Apr. 6, 2017) (denying 360Heros’ motion for leave to amend its infringement contentions
`when the relevant GoPro products were available before 360Heros filed its infringement counterclaims
`and noting that even a two-month delay in attempting to amend shows a lack of diligence).
`For instance, in RideApp, Inc. v. Lyft, Inc., this Court determined that RideApp failed to show
`timely good cause to amend its infringement intentions when it failed to include allegations against
`publicly available products in its initial infringement contentions. No. 18-cv-07152-JST (N.D. Cal.
`May 14, 2019), ECF No. 84. The RideApp case was originally filed in the Southern District of New
`
`LYFT’S RESPONSE TO AGIS MOTION
`TO AMEND INFRINGEMENT CONTENTIONS
`
`5
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`Case 5:21-cv-04653-BLF Document 102 Filed 04/15/22 Page 7 of 8
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`York, where RideApp served infringement contentions, before the case was transferred to the Northern
`District of California. After the transfer, the Court set a new deadline for serving infringement
`contentions, which RideApp declined to use. As in this case, RideApp later attempted to amend its
`infringement contentions to add new accused products. Id. at 2-3. The Court held that RideApp failed
`to show diligence because it could have learned of the new services earlier. Id. at 5-7 (citing P.L.R.
`3-6). Similarly, AGIS could have properly accused Lyft’s Android applications in its infringement
`contentions since it was well aware of Lyft’s Android applications through publicly accessible
`information and the fact that AGIS’s previously served infringement contentions did not accuse the
`Android applications, which Lyft told AGIS about as early as July 2021. AGIS chose to not accuse
`Lyft’s Android applications in its infringement contentions and it should be held to that decision.
`Moreover, AGIS cannot show good cause for amending its infringement contentions. There
`have been no intervening actions or events that provide AGIS with any reason to amend. Given the
`expedited schedule urged by AGIS when it represented to the Court that it was ready for trial, allowing
`AGIS to amend its contentions would prejudice Lyft and disrespect the Court’s schedule. See Ex. I at
`35 (Jan. 27, 2022 Case Management Conference Tr.) (“We have served our infringement reports, we
`have served our damages reports. So, in terms of contentions, we are pretty much ready to go.”); see
`also id. at 48 (“We will take the earlier trial date, we think everything will be final by then, we are
`ready to go to trial next month, so we are ready to go.”). The Patent Local Rules were developed to
`crystalize the parties’ positions early in the litigation, and the Federal Circuit has recognized this
`Court’s ability to strike contentions where there is no timely showing of good cause to amend. O2
`Micro, 467 F.3d at 1365-66. Allowing a party to amend its infringement contentions without “timely
`showing of good cause” prejudices accused infringers, especially in cases, such as this one, where
`there is an expedited schedule.
`
`V.
`
`CONCLUSION
`For the foregoing reasons, AGIS’s motion for leave to amend its infringement contentions
`should be denied.
`
`LYFT’S RESPONSE TO AGIS MOTION
`TO AMEND INFRINGEMENT CONTENTIONS
`
`6
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`Case 5:21-cv-04653-BLF Document 102 Filed 04/15/22 Page 8 of 8
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`Dated: April 15, 2022
`
`Respectfully submitted,
`
`By:
`
`/s/ Jeremy J. Taylor
`Jeremy J. Taylor
`
`Jeremy J. Taylor (SBN 249075)
`Arya Moshiri (SBN 324231)
`jeremy.taylor@bakerbotts.com
`arya.moshiri@bakerbotts.com
`BAKER BOTTS L.L.P.
`101 California St., Ste. 3600
`San Francisco, CA 94111
`Telephone: 415.291.6200
`Facsimile: 415.291.6300
`
`Kurt M. Pankratz (pro hac vice)
`Bethany R. Salpietra (pro hac vice)
`kurt.pankratz@bakerbotts.com
`bethany.salpietra@bakerbotts.com
`BAKER BOTTS L.L.P.
`2001 Ross Ave., Ste. 900
`Dallas, TX 75201
`Telephone: 214.953.6500
`Facsimile: 214.953.6503
`
`Attorneys for Plaintiff Lyft, Inc.
`
`LYFT’S RESPONSE TO AGIS MOTION
`TO AMEND INFRINGEMENT CONTENTIONS
`
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