Case 5:21-cv-04653-BLF Document 102-8 Filed 04/15/22 Page 1 of 24
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`Exhibit G
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`Case 2:21-cv-00072-JRG-RSP Document 191 Filed 11/03/21 Page 1 of 23 PageID #: 6369Case 5:21-cv-04653-BLF Document 102-8 Filed 04/15/22 Page 2 of 24
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CASE NO. 2:21-cv-00072-JRG
`(Lead Case)
`
`CASE NO. 2:21-cv-00024-JRG
`(Member Case)
`
`CASE NO. 2:21-cv-00026-JRG
`(Member Case)
`
`§§
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`§
`§
`§
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`§§§
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`§§
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`§
`§
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`§§§
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`§§
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`§
`§
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`§§
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`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`T-MOBILE USA, INC., and T-MOBILE
`US, INC.
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`LYFT, INC.
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`UBER TECHNOLOGIES, INC., d/b/a UBER
`
`DEFENDANT LYFT, INC.’S MOTION TO STRIKE PLAINTIFF’S FIRST AMENDED
`DISCLOSURE OF ASSERTED CLAIMS AND INFRINGEMENT
`CONTENTIONS
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`

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`TABLE OF CONTENTS
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`I.
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`II.
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`III.
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`Introduction ......................................................................................................................... 1
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`Factual Background ............................................................................................................ 2
`
`Argument ............................................................................................................................ 5
`
`A. AGIS’s Infringement Allegations Should Be Limited to the Lyft iOS Application. .......... 7
`B. AGIS’s Infringement Allegations Related to Storing User Phone Numbers Are Internally
`Inconsistent. ...................................................................................................................... 13
`C. AGIS’s Infringement Allegations Related to Exchanging IP Addresses Are Similarly
`Inconsistent. ...................................................................................................................... 15
`Conclusion ........................................................................................................................ 17
`
`IV.
`
`i
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`TABLE OF AUTHORITIES
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`Page(s)
`
`CASES
`
`Connectel, LLC v. Cisco Sys., Inc.,
`391 F. Supp. 2d 526 (E.D. Tex. 2005) ................................................................................... 5-6
`
`Implicit, LLC v. Huawei Techs. USA, Inc.,
`No. 6:17-cv-00182 (E.D. Tex. July 2, 2018) (Dkt. No. 153) ......................................... 6, 11-12
`
`Michael S Sutton Ltd. v. Nokia Corp.,
`No. 6:07-cv-203-LED (E.D. Tex. Feb. 13, 2009) (Dkt. No. 59) ........................................... 6-7
`
`Motorola, Inc. v. Analog Devices, Inc.,
`No. 1:03-cv-131, 2004 WL 5633735 (E.D. Tex. Apr. 8, 2004) ................................................5
`
`O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc.,
`467 F.3d 1355 (Fed. Cir. 2006)..................................................................................................5
`
`Salazar v. HTC Corp.,
`No. 2:16-cv-01096-JRG-RSP, 2017 WL 3593789 (E.D. Tex. Aug. 20, 2017) .........................5
`
`Traxcell Techs., LLC v. Huawei Techs. USA Inc.,
`No. 2:17-cv-00042, 2017 WL 6559256 (E.D. Tex. Dec. 21, 2017) ......................................5, 6
`
`Uniloc 2017 LLC v. Google LLC,
`No. 2:18-cv-00492 (E.D. Tex. Mar. 27, 2020) (Payne, J.), Dkt. No. 227 ...............................12
`
`ii
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`I.
`
`Introduction
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`Plaintiff AGIS Software Development LLC’s (“AGIS”) infringement contentions are
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`deficient and cannot stand for two primary reasons. First, AGIS’s May 2021 Infringement
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`Contentions include infringement allegations only for Lyft’s iOS application, yet it attempts to
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`improperly encapsulate other Lyft products, including applications for other operating systems,
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`such as Android, through the use of boilerplate language. Lyft notified AGIS repeatedly over the
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`course of several months that the boilerplate language was insufficient to provide proper notice of
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`its infringement theories, against any Lyft product other than Lyft’s iOS application, but AGIS did
`
`nothing in response.
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`Several months later, after reviewing Lyft’s source code, AGIS provided source code
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`contentions and for the very first time updated the infringement allegations to include Lyft’s
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`Android application. But source code contentions are meant to provide notice as to how the
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`accused products meet the claim limitations; they are not a vehicle for adding new accused
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`products to a case. If AGIS intended to accuse the Lyft Android app in this case, it should have
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`provided the requisite notice months ago with its May contentions pursuant to Local Patent Rule
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`3-1 and consistent with its obligations. For this reason, AGIS’s contentions should be limited to
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`the Lyft iOS applications only.
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`Second, AGIS’s contentions present conflicting theories that are facially untenable. Some
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`of the asserted claims require network participants to store the cellular phone numbers or IP
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`addresses of the other network participants. Other claims require anonymization: One network
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`user does not have access to the telephone number and/or IP address of another network user.
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`Despite the obvious conflict between these two sets of claims, AGIS asserts that the same accused
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`Lyft products infringe both sets of claims. That cannot be. AGIS’s contradictory allegations,
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`1
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`moreover, are not alleged in the alternative; rather, AGIS simultaneously alleges these inconsistent
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`theories of infringement. And, while alternative theories might have been reasonable prior to
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`AGIS’s review of Lyft’s source code, AGIS has had the information required to pick one of the
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`two theories since at least July 2021, when Lyft made its source code available for review. AGIS’s
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`continued assertion of these inconsistent positions forces Lyft to unnecessarily expend time and
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`resources on claims AGIS knows it will not and cannot assert, which is precisely what the local
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`patent rules were created to prevent.
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`Lyft therefore respectfully requests that the Court (1) strike AGIS’s contentions directed
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`to Lyft Android applications; (2) order AGIS to identify which infringement theory it will pursue;
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`and (3) strike the portions of AGIS’s contentions that are inconsistent with that theory.
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`II.
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`Factual Background
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`On January 28, 2021, AGIS filed its complaint alleging infringement of five patents: U.S.
`
`Patent Nos. 7,031,728 (the “’728 patent”), 7,630,724 (the “’724 patent”), 8,213,970 (the “’970
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`patent”), 10,299,100 (the “’100 patent”), and 10,341,838 (the “’838 patent”) (collectively, the
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`“Asserted Patents”). Dkt. No. 1, 2:21-cv-24. According to AGIS, the patents generally relate to
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`technology that includes a communication system that uses “integrated software and hardware
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`components on mobile devices to give users situational awareness superior to systems provided
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`by conventional military and first responder radio systems.” Id. ¶ 20.
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`Pursuant to the Docket Control Order (Dkt. No. 80), AGIS served its Disclosure of
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`Asserted Claims and Infringement Contentions on May 19, 2021 (“May Contentions”). The May
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`Contentions included the following boilerplate language: “the following Lyft Products infringe
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`each of the Patents-in-Suit, either alone or in concert with one or more other Lyft Accused
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`Products: Lyft applications, services, and servers; and Lyft Driver applications, services and
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`2
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`servers.” Ex. D at 2 (May Contentions, Cover Pleading). In the claim charts, AGIS included
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`additional boilerplate language: “The Accused Products comprise all versions of the Lyft
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`Application . . . . For example, the Accused Products comprise the Lyft application installed on
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`all Android, iOS, Blackberry, and Windows Mobile based mobile devices . . . and any variants
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`thereof.” Ex. E at 1 (May Contentions, ’838 Claim Chart).
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`But the substance included in the claim charts includes infringement allegations only for
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`Lyft’s iOS applications. Any infringement theory directed to Lyft’s Android applications was
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`notably absent. In fact, since Lyft does not even offer any application for Blackberry or Windows
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`Mobile devices, it would have been impossible for AGIS to properly allege infringement for these
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`purported products.
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`Lyft notified AGIS multiple times that its boilerplate statements were, and continue to be,
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`insufficient to constitute infringement allegations against any non-iOS Lyft product; indeed, AGIS
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`was required under Local Patent Rule 3-1 to provide a claim chart for every accused product. See
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`Ex. A (July 21, 2021 Taylor email) (“With respect to the accused instrumentalities, AGIS’s generic
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`reference to ‘Lyft applications, services and servers’ is insufficient to provide adequate notice of
`
`what AGIS accuses of infringement. The infringement charts appear to only specifically identify
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`where elements of each asserted claim is found within the accused Lyft iOS App without evidence
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`or explanation for how the allegations against the iOS app could apply to any other application,
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`service, or server.”); Ex. B (Aug. 6, 2021 Salpietra letter) (“AGIS’s preliminary infringement
`
`contentions, however, only properly accuse Lyft’s iOS apps of infringement. Indeed, AGIS’s
`
`contentions fail to identify any evidence concerning allegedly infringing Android, Blackberry, or
`
`Windows Mobile apps.”); Ex. C at 9 (Oct. 5, 2021 Salpietra Letter) (“AGIS has only properly
`
`accused Lyft’s iOS products of infringement.”). AGIS never moved to amend its contentions to
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`3
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`include claim charts for the Lyft Android application, leaving Lyft without notice of any
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`infringement theory as to that product. AGIS never provided any reason why it did not provide
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`infringement allegations against the Lyft Android application in the May Contentions based on
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`publicly available information.
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`AGIS also identified every limitation of every asserted claim as a software limitation in the
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`May Contentions (Exs. E-I), using the following language:
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`Further, to the extent this element is performed at least in part by Lyft’s software
`source code, AGIS reserves the right to supplement these contentions pursuant to
`production of such source code by Lyft and to the extent Defendant requires
`additional information in accordance with P.R. 3-1 and for any other reasons.
`
`On July 21, 2021, Lyft made its source code available for review. AGIS began its review of Lyft’s
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`source code on August 27, 2021. Over the past two months, AGIS’s expert has reviewed the
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`source code for several days.
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`On September 27, 2021, AGIS served its First Amended Disclosure of Asserted Claims
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`and Infringement Contentions (“Amended Contentions”), which were purportedly amended
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`pursuant to Paragraph 3(a)(i) of the Discovery Order (Dkt. No. 79). AGIS included citations to
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`source code for Lyft’s Android application in the Amended Contentions. Four months after it was
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`required to serve its infringement contentions on all accused products, AGIS included reference to
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`portions of the Lyft Android application for the first time.
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`The Amended Contentions also include facially unworkable infringement theories.1 For
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`some claims, AGIS asserts that the accused Lyft apps access and provide user information such as
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`a phone number and IP address, but for other claims, AGIS asserts the very opposite—that the
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`1 AGIS served Second Amended Disclosure of Asserted Claims and Infringement Contentions
`on November 3, 2021 purportedly in response to the 10/29/21 deposition testimony of Lyft’s
`corporate representative, but those contentions suffer from the same deficiencies.
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`4
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`apps cannot and do not have access to that same user information. AGIS has been on notice of
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`this deficiency in its contentions and failed to remedy it. See Dkt. No. 172 at 3; Dkt. No. 172-2.
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`III.
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`Argument
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`“The Patent Rules demonstrate high expectations as to plaintiffs’ preparedness before
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`bringing suit, requiring plaintiffs to disclose their preliminary2 infringement contentions before
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`discovery has even begun.” Connectel, LLC v. Cisco Sys., Inc., 391 F. Supp. 2d 526, 527 (E.D.
`
`Tex. 2005). As such, the local patent rules require that the “parties formulate, test, and crystallize
`
`their infringement theories before stating their preliminary infringement contentions . . . [so] the
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`case takes a clear path, focusing discovery on building precise final infringement or invalidity
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`contentions and narrowing issues for Markman, summary judgment, trial, and beyond.” Id.; see
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`also Salazar v. HTC Corp., No. 2:16-cv-01096-JRG-RSP, 2017 WL 3593789, at *3 (E.D. Tex.
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`Aug. 20, 2017) (“This District’s local rules allow patent holders to move through the pretrial
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`process more quickly than other venues. The tradeoff, however, is that this District requires its
`
`plaintiffs to be extraordinarily prepared before they file their cases.”).3 “The rules thus seek to
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`balance the right to develop new information in discovery with the need for certainty as to legal
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`theories.” Traxcell Techs., LLC v. Huawei Techs. USA Inc., No. 2:17-cv-00042-RWS-RSP, 2017
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`WL 6559256, at *4 (E.D. Tex. Dec. 21, 2017) (quoting O2 Micro Int’l Ltd. v. Monolithic Power
`
`Sys., Inc., 467 F.3d 1355, 1366 (Fed. Cir. 2006)).
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`Contentions “require parties to crystalize their theories of the case, and to prevent a
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`‘shifting sands’ approach to patent litigation.” Motorola, Inc. v. Analog Devices, Inc., No. 1:03-
`
`cv-131, 2004 WL 5633735, at *1 (E.D. Tex. Apr. 8, 2004). “Specific theories create a specific
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`2 In 2006, the District revised the Rules to remove the word “preliminary.” See General Order
`06-15 at 27–28 (Oct. 27, 2006).
`3 All emphases added unless otherwise noted.
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`5
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`trajectory for the case” and prevent the parties from proceeding through the case “without clear
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`direction.” Connectel, 391 F. Supp. 2d at 527. To this end, the patent rules require a plaintiff to,
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`at a minimum, identify (1) each accused instrumentality “separately for each asserted claim” and
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`as “specific[ally] as possible,” and (2) where each element of each asserted claim is found within
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`each accused instrumentality. See P.R. 3-1(b), (c).
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`AGIS’s late addition of new products and conflicting infringement theories—not alleged
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`in the alternative4—run counter to P.R. 3-1’s intended purpose that AGIS solidify its infringement
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`theories early in the litigation. See Traxcell, 2017 WL 6559256, at *4. Indeed, they favor the
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`shifting sands approach rather than certainty. First, the purpose of source code citations is to
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`provide notice for “how accused technologies meet limitations” in infringement contentions, not
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`to broaden the case to include additional products. Implicit, LLC v. Huawei Techs. USA, Inc., No.
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`6:17-cv-00182 (E.D. Tex. July 2, 2018) (Dkt. No. 153) (striking amended contentions); see also
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`Discovery Order (Dkt. No. 79) (providing that 30 days after source code is produced, the patentee
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`shall identify “what source code of each Accused Instrumentality allegedly satisfies the software
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`limitations of the asserted claim elements”). Second, the inconsistencies in AGIS’s infringement
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`contentions “make it impossible for [Lyft] to determine the theory of infringement with any
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`certainty,” as is required under the local patent rules. See Dkt. No. 172 at 5. The inconsistencies,
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`moreover, are particularly troublesome where, as here, a plaintiff has reviewed source code over
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`the course of several months such that it knows what theory it will pursue yet continues to withhold
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`them. See Michael S Sutton Ltd. v. Nokia Corp., No. 6:07-cv-203-LED, at *3 (E.D. Tex. Feb. 13,
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`2009) (Dkt. No. 59) (“And at this point, Sutton has had over seven months to analyze the source
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`4 Although Federal Rule of Civil Procedure 8 allows a party to include in its pleading
`inconsistent theories, the local patent rules contain no such allowance; to the contrary, their
`purpose is specificity and certainty.
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`6
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`code since Nokia made its production in June 2008 and should now be able to provide a more
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`detailed claim chart that shows specifically where each element of every accused device is
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`found.”).
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`A.
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`AGIS’s Infringement Allegations Should Be Limited to the Lyft iOS
`Application.
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`AGIS’s infringement allegations against Lyft should be limited to the Lyft application
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`designed for Apple’s iOS. AGIS’s infringement allegations in its May Contentions were limited
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`only to the Lyft iOS app. But AGIS now seeks to expand the scope of the case to include Lyft’s
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`application for Android too. AGIS should not be permitted to do so at this late stage, where it
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`failed to comply with its obligations under the Local Patent Rules.
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`AGIS’s claim charts in the May Contentions include infringement allegations only for the
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`Lyft iOS app. Some examples are provided below:
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`https://www.youtube.com/watch?v=b31WorLlcqE at 3:26 (cited in Ex. G, May Contentions, C-
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`24) (showing iPhone home screen).
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`7
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`https://www.youtube.com/watch?v=j0RDMLcmOgU at 0:57 (cited in Ex. E, May Contentions, A-
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`6) (showing Apple Pay).
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`Cited in Exs. E-I (May Contentions, A-4, B-4, C-4, D-4, E-5).
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`8
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`Cited in Exs. E, G, H (May Contentions, A-46, C-24, D-32).
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`9
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`Cited in Exs. F, H, I (May Contentions, B-7, D-11, E-8).
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`AGIS included broad boilerplate language at the top of its claim charts in the May
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`Contentions (“The Accused Products comprise all versions of the Lyft Application made, used,
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`sold, offered for sale, or otherwise provided, after September 21, 2004. For example, the Accused
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`Products comprise the Lyft application installed on all Android, iOS, Blackberry, and Windows
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`Mobile based mobile devices . . . and any variants thereof.”). But this language was a “catch-all”
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`without support: Lyft does not even offer an application for Blackberry or Windows Mobile
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`devices which would make it impossible for AGIS to comply with its obligations under the Local
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`Patent Rules based on this sentence alone. Importantly, the local patent rules of this District
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`required AGIS to include in its contentions “a chart identifying specifically where each element is
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`10
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`found within each Accused Instrumentality.” Local Patent Rule 3-1(c). The only accused
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`instrumentality charted in AGIS’s claim charts is the Lyft iOS app.
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`Lyft provided notice to AGIS repeatedly during discovery that its contentions were
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`deficient as to any non-iOS Lyft product. See Ex. A (July 21, 2021 Taylor email); Ex. B (Aug. 6,
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`2021 Salpietra letter) (“AGIS’s preliminary infringement contentions, however, only properly
`
`accuse Lyft’s iOS apps of infringement. Indeed, AGIS’s contentions fail to identify any evidence
`
`concerning allegedly infringing Android, Blackberry, or Windows Mobile apps.”); Ex. C at 9 (Oct.
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`5, 2021 Salpietra letter) (“AGIS has only properly accused Lyft’s iOS products of infringement.”).
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`Despite Lyft’s repeated notices to AGIS concerning its deficient infringement allegations, AGIS
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`did not supplement its contentions based on publicly available information or Lyft’s technical
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`document production to include infringement allegations for the Lyft Android app. Nor did AGIS
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`explain why it could not do so. Lyft was left without notice as to any infringement theory AGIS
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`had against the Lyft Android application.
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`AGIS now seeks to expand the scope of the case through its source code contentions—
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`several months after its contentions identifying the accused products were due—and only a handful
`
`of months before trial. But a plaintiff is not permitted to use source code contentions to add
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`additional accused products; rather, the purpose of source code citations is to provide notice for
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`“how accused technologies meet limitations” in infringement contentions. Implicit, LLC v.
`
`Huawei Techs. USA, Inc., No. 6:17-cv-00182 (E.D. Tex. July 2, 2018) (Dkt. No. 153); see also
`
`Discovery Order (Dkt. No. 79) (providing that 30 days after source code is produced, the patentee
`
`shall identify “what source code of each Accused Instrumentality allegedly satisfies the software
`
`limitations of the asserted claim elements”). In Implicit, the plaintiff amended its infringement
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`contentions after reviewing the defendant’s source code and identified for the first time three
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`11
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`additional infringing technologies. Id. The court struck the amended contentions, reasoning that
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`plaintiff had not provided sufficient cause as to why the newly added aspects of accused products
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`could not have been identified prior to the production of source code. Id. at 6. The court held that
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`the local rule “does not permit additional, non-case functionalities to be newly introduced, thereby
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`opening new fronts, following the production of complete code bases mid-way through the
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`litigation. To the contrary, such a result is exactly the kind of dilemmas the Patent Rules are
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`intended to prevent.” Id. at 6. The same result should govern here, where AGIS could have
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`provided its infringement theory as to the Lyft Android app with its May Contentions based on
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`public information yet failed to do so.
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`Nor may AGIS rely on a representative products analysis because AGIS did not perform
`
`the analysis required for such a contention. To accuse a product as representative of other accused
`
`products, the plaintiff must “use some reasonable diligence to use the publicly available
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`information to explain how the infringement theory that is charted would apply to uncharted
`
`products,” a burden AGIS failed to carry. Order at 2, Uniloc 2017 LLC v. Google LLC, No. 2:18-
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`cv-00492 (E.D. Tex. Mar. 27, 2020) (Payne, J.), Dkt. No. 227 (granting motion to strike
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`contentions because plaintiff had not made “any effort. . . to demonstrate that the charted products
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`are reasonably similar through the use of publicly available information”). A requirement remains
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`“that the Plaintiff not simply identify the other uncharted products.” Id.
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`Lyft would be significantly prejudiced if AGIS is permitted to add new accused products
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`to the case through its source code contentions. The parties have already conducted fact discovery
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`and claim construction and are now preparing expert reports. Trial is only a handful of months
`
`away. AGIS should not be permitted to interject new accused products at this late stage.
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`For these reasons, AGIS’s contentions should be limited to Lyft’s iOS application.
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`12
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`B.
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`AGIS’s Infringement Allegations Related to Storing User Phone Numbers
`Are Internally Inconsistent.
`
`AGIS’s contentions also fail for containing impermissibly inconsistent theories. Some
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`asserted claims require the users’ phone numbers be exchanged, while others require that the phone
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`numbers not be accessed—both cannot simultaneously be true. For example, Claim 7 of the ’728
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`patent and claim 9 of the ’724 patent require that the phone number of the other users in the network
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`be provided to and/or stored on the user’s device. See, e.g., Cl. 7, Dkt. No. 1-3, 2:21-cv-24 (’728
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`patent) (“providing and storing in each of the participant cellular phones one or more cellular
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`phone telephone numbers, each cellular phone number of which relates to a different symbol of
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`each of the participants in the communication network”); Cl. 9, Dkt. No. 1-2, 2:21-cv-24 (’724
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`patent) (“accessing a database in each cell phone that includes cellular telephone numbers of each
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`of the participating users having similarly equipped cellular phones, said database including the
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`generation of one or more symbols associated with a particular participating user”). Claim 1 of
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`the ’100 patent, on the other hand, requires that the mobile device does not have access to the
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`phone number of another participant in the network. See, e.g., Cl. 1, Dkt. No. 1-4, 2:21-cv-24
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`(’100 patent) (“wherein the mobile device does not have access to a phone number associated with
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`a computing device corresponding to the first vehicle, an Internet Protocol (IP) address associated
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`with the computing device corresponding to the first vehicle, and an e-mail address associated with
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`the computing device corresponding to the first vehicle”); see also Cl. 16, Dkt. No. 1-2, 2:21-cv-
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`24 (’724 patent).
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`In its Amended Contentions, AGIS alleges that the accused apps both store and/or provide
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`the phone numbers and do not store and/or provide the phone numbers. For example, for the
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`claims requiring storing the phone numbers, AGIS alleges that the accused apps collect, store, and
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`provide the phone numbers. AGIS’s allegations directed to claim 7 of the ’728 patent state:
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`
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`Riders and drivers have “the Lyft app” installed on their mobile phones. Ex. I,
`Infringement Contentions at E-3.5
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`“The Lyft Accused Products practice providing and storing in each of the
`participant cellular phones one or more cellular phone telephone numbers, each
`cellular phone number of which relates to a different symbol of each of the
`participants in the communication network.” Id. at E-21.
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`“Lyft collects the phone number of each driver and passenger when they join the
`Lyft network. Lyft stores and provides the phone numbers in the Lyft apps . . . .”
`Id.
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`And for claims 9 and 12 of the ’724 patent, AGIS alleges that:
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`“Each of the driver and the passenger’s mobile phones [] are installed with the Lyft
`app and Lyft driver apps . . . .” Ex. F at B-3.
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`“The Lyft Accused Products perform a computer implemented method . . . of:
`accessing a database in each cell phone that includes cellular telephone numbers of
`each of the participating users . . . .” Id. at B-19.
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`“The Lyft apps meet this limitation because they access the cellular telephone
`numbers of the riders/drivers of the Lyft platform/network. On information and
`belief, the telephone numbers are stored on one or more databases either locally
`or remotely on a Lyft server(s) for access by the Lyft apps.” Id. at B-19.
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`“The Lyft Accused Products infringe... [by] adding a new cell phone participant
`into a communication network of participating users by having the new cell phone
`participant transmit an identifier, a cell phone number and an IP address in an
`initial message to other participant users or to a server . . . .” Id. at B-34.
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`However, for the claims that require the device not to have access to the phone numbers, AGIS
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`asserts the very opposite. For example, for claim 1 of the ’100 patent, AGIS asserts:
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`
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`“Lyft provides Lyft app for passengers and Lyft Driver app for drivers.” Ex. G at
`C-3.
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`“The Lyft Accused Products infringe directly and/or indirectly . . . wherein the
`mobile device does not have access to a phone number associated with a
`computing device corresponding to the first vehicle, an Internet Protocol (IP)
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`5 The citations herein are to the May Contentions, but the Amended Contentions contain the
`same allegations. Lyft has used the May Contentions to avoid filing source code materials with
`the Court.
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`address associated with the computing device corresponding to the first
`vehicle . . . .” Id. at C-40.
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`
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`“The Lyft app for the rider does not have access to the driver’s phone number
`associated with the driver’s account. The Lyft app for the rider also does not have
`access to the driver’s email address or driver’s IP address associated with the
`driver’s device through the Lyft app. For example, the passenger does not have
`any information of the driver (such as email address, IP address, and contact
`number) and this information is not available through the Lyft app for the rider.”
`Id. at C-41.
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`Similarly, for claim 16 of the ’724 patent, AGIS asserts that “[o]n information and belief,
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`communications between riders/drivers do not require knowledge of the drivers/riders’ identity or
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`phone number.” Ex. F at B-50.
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`These allegations are wholly irreconcilable. The Lyft apps cannot both access phone
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`numbers and not access phone numbers. These types of allegations are facially in contention with
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`one another and run afoul of the purpose of the local patent rules, which require that AGIS solidify
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`its infringement theories early in the case. Given AGIS’s review of Lyft’s source code and the
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`stage of the case, AGIS knows which theory it will pursue—Lyft should not be forced to guess at
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`which choice AGIS will make.
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`C.
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`AGIS’s Infringement Allegations Related to Exchanging IP Addresses Are
`Similarly Inconsistent.
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`Like the claims related to users’ phone numbers, some asserted claims require the users’
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`IP addresses be exchanged, while others require that the IP addresses not be accessed—both cannot
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`simultaneously be true. For example, claim 9 of the ’724 patent requires that the network
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`participants exchange IP addresses. Cl. 9, Dkt. No. 1-2, 2:21-cv-24 (’724 patent) (“exchanging IP
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`addresses using SMS or other digital message format between and among each of the network
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`participant users so that communications between participants is established via IP or transmission
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`of a network participant’s IP address to a server which then transmits data to other network
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`participants using the IP address previously”). But, in contrast, claims 1 and 24 of the ’100 patent
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`require that the network participants do not have access to each other’s IP addresses. Cls. 1 and
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`24, Dkt. No. 1-4, 2:21-cv-24 (’100 patent) (“wherein the mobile device does not have access to . . .
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`an Internet Protocol (IP) address associated with the computing device corresponding to the first
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`vehicle”).
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`For the claims that require the exchange of IP addresses, AGIS asserts that the accused
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`Lyft apps provide that access. For example, for cla