Case 5:21-cv-04653-BLF Document 120 Filed 05/02/22 Page 1 of 11
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`Alfred R. Fabricant
`afabricant@fabricantllp.com
`Peter Lambrianakos
`plambrianakos@fabricantllp.com
`Vincent J. Rubino, III
`vrubino@fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Avenue, Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
`
`Benjamin T. Wang
`bwang@raklaw.com
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, California 90025
`Telephone: (310) 826-7474
`Facsimile: (310) 826-9226
`
`Attorneys for Defendant
`AGIS Software Development LLC
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`LYFT, INC.,
`
`
`
`
`v.
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Defendant.
`
`
`
`Plaintiff,
`
` Case No. 5:21-cv-04653-BLF
`
`DEFENDANT AGIS SOFTWARE
`DEVELOPMENT LLC’S RESPONSE IN
`OPPOSITION TO LYFT, INC.’S
`MOTION TO STAY PENDING PATENT
`OFFICE PROCEEDINGS INVOLVING
`THE PATENTS-IN-SUIT (Dkt. 103)
`
`Hon. Judge Beth Labson Freeman
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`DEFENDANT AGIS SOFTWARE DEVELOPMENT LLC’S RESP. IN OPP TO LYFT, INC. MOTION TO STAY
`5:21-cv-04653-BLF
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`Case 5:21-cv-04653-BLF Document 120 Filed 05/02/22 Page 2 of 11
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`I.
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`INTRODUCTION
`Plaintiff Lyft, Inc. (“Lyft”) seeks to stay a case that does not have an operative complaint.
`Lyft’s motion for leave to file its amended complaint is still pending and thus, Lyft has not alleged
`non-infringement of U.S. Patent Nos. 8,213,970 (the “’970 Patent”); 7,630,724 (the “’724 Patent”);
`7,031,728 (the “’728 Patent”); 10,299,100 (the “’100 Patent”); and 10,341,838 (the “’838 Patent”).
`Nonetheless, the circumstances do not warrant a stay because there is no chance that each
`claim of the patents-in-suit will be either amended or cancelled in any parallel proceeding. No IPR
`petition has been filed against the ’970 patent, and Lyft is statutorily barred from filing any petitions
`against the ’970 patent. There is no instituted IPR review against any patent-in-suit. There are no
`reexamination rejections against any patent-in-suit.
`II.
`FACTUAL BACKGROUND
`On January 29, 2021, Defendant AGIS Software Development LLC (“AGIS Software”)
`filed a complaint against Lyft alleging infringement of the ’970, ’724, ’728, ’100, and ’838 Patents
`in the Eastern District of Texas. AGIS Software Dev. LLC v. Lyft, Inc., No. 2:21-cv-00024-JRG,
`Dkt. 1 (E.D. Tex. Jan. 29, 2021).
`On June 16, 2021, Lyft filed a complaint against AGIS Software seeking a declaratory
`judgment of non-infringement of ’970, ’724, ’728, ’100, and ’838 Patents. Lyft, Inc. v. AGIS
`Software Dev. LLC, No. 5:21-cv-04653-BLF, Dkt. 1 (N.D. Cal. June 16, 2021). AGIS Software
`filed a motion to dismiss the complaint for declaratory judgment on September 27, 2021 (Dkt. 32)
`and the Court subsequently granted AGIS Software’s motion to dismiss without prejudice on
`January 28, 2022. Dkt. 61. Lyft filed a motion for leave to file its first amended complaint on
`March 28, 2022, which is currently scheduled for a hearing on July 28, 2022. See Dkt. 78.
`On July 23, 2021, Uber Technologies, Inc. d/b/a Uber (“Uber”) filed three petitions for inter
`partes review (“IPR”) against the ’100 and ’838 Patents. See Uber Technologies, Inc. d/b/a Uber
`v. AGIS Software Dev. LLC, IPR2021-01306, Paper 1 (P.T.A.B. July 23, 2021); Uber Technologies,
`Inc. d/b/a Uber v. AGIS Software Dev. LLC, IPR2022-01307, Paper 1 (P.T.A.B. July 23, 2021);
`Uber Technologies, Inc. d/b/a Uber v. AGIS Software Dev. LLC, IPR2022-01308, Paper 1 (P.T.A.B.
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`DEFENDANT AGIS SOFTWARE DEVELOPMENT LLC’S RESP. IN OPP TO LYFT, INC. MOTION TO STAY
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`July 23, 2021). On March 16, 2022, Uber and AGIS Software filed a joint motion to terminate all
`three IPRs following settlement. Uber Technologies, Inc. d/b/a Uber v. AGIS Software Dev. LLC,
`IPR2021-01306, Paper 14 (P.T.A.B. Mar. 16, 2022); Uber Technologies, Inc. d/b/a Uber v. AGIS
`Software Dev. LLC, IPR2022-01307, Paper 15 (P.T.A.B. Mar. 16, 2022); Uber Technologies, Inc.
`d/b/a Uber v. AGIS Software Dev. LLC, IPR2022-01308, Paper 16 (P.T.A.B. Mar. 16, 2022). The
`Board terminated the Uber IPRs on March 17, 2022.
`Uber also filed requests for ex parte reexamination on October 22, 2021 against the ’724 and
`’728 Patents. See No. 90/014,889; No. 90/014,890. The United States Patent and Trademark Office
`(“PTO”) ordered reexamination on December 7, 2021. No rejections have been issued to date in
`either reexamination.
`Lyft filed its own IPR petitions on January 29, 2022 together with motions to join Uber’s
`IPRs. Lyft, Inc. v. AGIS Software Dev. LLC, IPR2022-00513, Paper 1 (P.T.A.B. Jan. 29, 2022);
`Lyft, Inc. v. AGIS Software Dev. LLC, IPR2022-00514, Paper 1 (P.T.A.B. Jan. 29, 2022); Lyft, Inc.
`v. AGIS Software Dev. LLC, IPR2022-00515, Paper 1 (P.T.A.B. Jan. 29, 2022). However, the
`joinder motions are now moot in view of the termination of the Uber IPRs. AGIS Software’s
`preliminary responses are not due until May 8, 2022, and the PTAB’s institution decisions will be
`issued within three months.
`III. LEGAL STANDARDS
`“Courts have inherent power to manage their dockets and stay proceedings, including the
`authority to order a stay pending conclusion of a PTO reexamination.” Ethicon, Inc. v. Quigg, 849
`F.2d 1422, 1426-27 (Fed. Cir. 1988). While the case law states several general considerations that
`are helpful in determining whether to order a stay, ultimately the Court must decide stay requests
`on a case-by-case basis. Comcast Cable Commc'ns Corp., LLC v. Finisar Corp., No. 06–cv–04206–
`WHA, 2007 WL 1052883, at * 1 (N.D. Cal. Apr. 5, 2007) (“From a case management perspective,
`the possible benefits must be weighed in each instance against the possible drawbacks.”).
`In determining whether to stay a case pending reexamination, courts consider the following
`factors: (1) the stage and history of the litigation; (2) whether a stay would simplify the issues in
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`DEFENDANT AGIS SOFTWARE DEVELOPMENT LLC’S RESP. IN OPP. TO LYFT, INC. MOTION TO STAY
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`RUSS AUGUST & KABAT
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`question and trial of the case; and (3) whether a stay would unduly prejudice or present a clear
`tactical disadvantage to the non-moving party. TPK Touch Sols., Inc v. Wintek Electro-Optics Corp.,
`No. 13-CV-02218-JST, 2013 WL 6021324, at *2 (N.D. Cal. Nov. 13, 2013). Courts traditionally
`consider three main factors in determining whether to stay a case pending the conclusion
`of IPR proceedings: “(1) whether discovery is complete and whether a trial date has been set; (2)
`whether a stay will simplify the issues in question and trial of the case; and (3) whether a stay would
`unduly prejudice or present a clear tactical disadvantage to the non-moving party.” Telemac Corp.
`v. Teledigital, Inc., 450 F.Supp.2d 1107, 1111 (N.D. Cal. 2006) (citation omitted); see also Robert
`Bosch Healthcare Sys., Inc. v. Cardiocom, LLC, No. C–14–1575 EMC, 2014 WL 3107447, at *3
`(N.D. Cal. July 3, 2014). “The party seeking the stay bears the burden of persuading the court that
`a stay is appropriate.” Evolutionary Intelligence, 2014 WL 2738501, at *3 (citing Nken v.
`Holder, 556 U.S. 418, 433–34 (2009)).
`IV. ARGUMENT
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`Simplification of the Issues and Trial of the Case Do Not Favor a Stay
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`A.
`This factor addresses whether and to what degree a stay will simplify the litigation.
`PersonalWeb Techs., LLC v. Facebook, Inc., No. 5:13-cv-01356-EJD, 2014 WL 116340, at *4 (N.D.
`Cal. Jan. 13, 2014). This factor does not favor a stay because at least one of the patents-in-suit are
`not subject to review at the USPTO. There is no IPR or reexamination challenge to the ’970 patent.
`For the remaining patents-in-suit, the IPRs sought for the ’838 and ’100 patents have not been
`instituted, and whether the PTAB will institute the IPR proceedings is based on Lyft’s pure
`speculation. Skillz Platform Inc. v. Aviagames Inc., 2022 WL 1189882, at *3 (N.D. Cal. Apr. 21,
`2022) (“The Court finds that simplification from the IPRs is purely speculative at this stage.”). Lyft
`concedes that the PTAB has not instituted review on the three IPRs which address only a subset of
`the patents-in-suit, the ’838 and ’100 Patents. Dkt. 103 at 5-6. Similarly, there have been no
`rejections in the reexaminations requested for the ’724 and ’728 patents.
`Lyft waited to file its IPR petitions exactly one year after receipt of a complaint.
`Accordingly, AGIS Software’s response has yet to be filed, review has not yet been instituted, and
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`DEFENDANT AGIS SOFTWARE DEVELOPMENT LLC’S RESP. IN OPP. TO LYFT, INC. MOTION TO STAY
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`RUSS AUGUST & KABAT
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`Case 5:21-cv-04653-BLF Document 120 Filed 05/02/22 Page 5 of 11
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`the institution decision will not come for several months. See GoPro, Inc. v. C&A Marketing, Inc.,
`2017 WL 2591268, at *4 (N.D. Cal. June 15, 2017) (“With respect to this factor, the Court finds
`most relevant the fact that C&A’s petition was filed shortly before its motion, review has not yet
`been instituted, and the institution decision will not come for several months.”). This Court has held
`that “the filing of an IPR request by itself does not simplify the issues in question and trial of the
`case. Ultimately, the PTO may not institute IPR proceedings.” TPK, 2013 WL 6021324, at *4. Lyft
`argues that if IPR is granted, it would increase the likelihood of simplification, but “this argument
`is largely undercut by the reality that IPR has not yet been instituted.” SAGE Electrochromics, Inc.
`v. View, Inc., 2015 WL 66415, at *2 (N.D. Cal. Jan. 5, 2015). Lyft’s reliance on cases which granted
`pre-institution stays is unpersuasive. See Skillz, 2022 WL 1189882, at *4 (“AviaGames’ lengthy
`list of pre-institution stays is unpersuasive. Some courts in this district favor pre-institution stays
`while others do not.”). Because there is no review of the ’970 patent and because there is no chance
`that each claim of the patents-in-suit will be either amended or cancelled in any parallel proceeding,
`the instant request should be denied.
`While Lyft alleges that the Court’s current schedule is unfeasible, it has not moved this Court
`for a continuance of any dates and this Court’s Case Management Order sets forth a date for the
`claim construction hearing on September 1, 2022. See Dkt. 59. Further, the parties submitted a
`joint stipulated scheduling order that requires parties engage in claim construction proceedings prior
`to issuance of the PTAB’s institution decision. See Dkt. 69. While Lyft alleges that a stay would
`“simultaneously conserve resources by avoiding depositions and other work which may be rendered
`moot,” likewise, if the Court granted a stay and the IPRs were not instituted, “the parties would have
`to engage in discovery in approximately half the amount of time they have currently.” Skillz, 2022
`WL 1189882, at *4 (“In light of that risk, the Court is not convinced that discovery considerations
`indicate simplification at this stage.”).
`Further, while there is a possibility that an IPR or EPR proceeding may simplify the issues
`in a case, an EPR is less likely to simplify the case than an IPR “because the ex parte reexamination
`lacks the estoppel benefits of IPR.” TPK, 2013 WL 6021324, at *3. The PTO grants 92.2% of
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`DEFENDANT AGIS SOFTWARE DEVELOPMENT LLC’S RESP. IN OPP. TO LYFT, INC. MOTION TO STAY
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`reexamination requests, and overall, 20.9% of reexaminations result in certificates with all claims
`confirmed, 13.1% with all claims canceled, and 66.0% with claim changes. See Ex. 1, United States
`Patent and Trademark Office Ex Parte Reexamination Filing Data- September 30, 2020. While Lyft
`speculates based on these statistics that the asserted claims of the ’724 and ’728 Patents will be
`invalidated or changed, “Defendant essentially asks the Court to stay these proceedings on the
`unsupported presumption that the patents-in-suit will be invalidated.” Wordtech Sys., Inc. v.
`Microboards Mfg., LLC, 2010 WL 1641510, at *2 (N.D. Cal. Apr. 22, 2010) (“Additionally, as
`plaintiff points out, this case involves several counterclaims that are outside the scope of
`reexamination, and in any event the Court may resolve the issues related to the prior art without a
`ruling from the PTO.”).
`“While an IPR proceeding might simplify a case once IPR has been granted, at this point it
`is too early to draw that conclusion.” TPK Touch Soln’s, 2013 WL 6021324, at *4; SAGE
`Electrochromics, 2015 WL 66415, at *3 (“Nonetheless, the uncertainty surrounding whether the
`PTO will elect to institute IPR proceedings weighs against a finding of likelihood of simplification
`of the issues. This factor therefore weighs against a stay at this time.”). Institution on Lyft’s three
`IPR petitions have yet to be granted, and will not be determined until at least as early as August.
`Further, Lyft merely speculates that the IPRs and EPRs may resolve issues regarding the Asserted
`Patents. Accordingly, the potential simplification of issues does not weigh in favor a stay.
`
`The Prejudice and Disadvantage to AGIS Software Weighs Against a Stay
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`B.
`This factor assesses “whether a stay would unduly prejudice or present a clear tactical
`disadvantage to the non-moving party.” TPK, 2013 WL 6021324, at *4. In assessing the prejudice
`to the non-moving party, courts may consider four additional factors: “(1) the timing of the petition
`for review; (2) the timing of the request for the stay; (3) the status of review proceedings; and (4)
`the relationship of the parties.” Cypress Semiconductor Corp. v. GSI Tech., Inc., No. 12-cv-02013-
`JST, 2014 WL 5021100 at *3 (N.D. Cal. Oct. 7, 2014).
`First, Lyft filed its IPR petitions on January 29, 2022, exactly one year from the date of the
`filing of the complaint against Lyft in the EDTX. Compare AGIS Software Dev. LLC v. Lyft, Inc.,
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`DEFENDANT AGIS SOFTWARE DEVELOPMENT LLC’S RESP. IN OPP. TO LYFT, INC. MOTION TO STAY
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`RUSS AUGUST & KABAT
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`Case 5:21-cv-04653-BLF Document 120 Filed 05/02/22 Page 7 of 11
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`No. 2:21-cv-00024-JRG, Dkt. 1 (E.D. Tex. Jan. 29, 2021) with Lyft, Inc. v. AGIS Software Dev.
`LLC, IPR2022-00513, Paper 1 (P.T.A.B. Jan. 29, 2022); Lyft, Inc. v. AGIS Software Dev. LLC,
`IPR2022-00514, Paper 1 (P.T.A.B. Jan. 29, 2022); Lyft, Inc. v. AGIS Software Dev. LLC, IPR2022-
`00515, Paper 1 (P.T.A.B. Jan. 29, 2022). In contrast, Defendant Uber Technologies, Inc. d/b/a Uber,
`filed its petitions for IPR against the ’838 and ’100 Patents on July 23, 2021. See Uber Technologies,
`Inc. d/b/a Uber v. AGIS Software Dev. LLC, IPR2021-01306, Paper 1 (P.T.A.B. July 23, 2021);
`Uber Technologies, Inc. d/b/a Uber v. AGIS Software Dev. LLC, IPR2022-01307, Paper 1 (P.T.A.B.
`July 23, 2021); Uber Technologies, Inc. d/b/a Uber v. AGIS Software Dev. LLC, IPR2022-01308,
`Paper 1 (P.T.A.B. July 23, 2021). The Court “expects defendants to evaluate whether to file, and
`then to file, IPR Petitions as soon as possible after learning that a patent may be asserted against
`them.” TPK, 2013 WL 6882409, at *3. Here, Lyft has not done so where it was aware of the
`Asserted Patents nearly a year prior to the filing of its IPR petitions. WordTech Sys., 2010 WL
`1641510, at *2 (“[T]he Court notes that although defendants have been aware of plaintiff’s
`infringement claims since at least August 2008, when plaintiff commenced a prior action in this
`district for infringement of the same four patents at issue in this case, defendants did not seek
`reexamination until December 2009. Defendants fail to explain this delay.”).
`Second, the timing of Lyft’s motion to stay does not support a stay, where Lyft waited to file
`its motion to stay nearly three months after the filing of its IPR petitions. Lyft itself concedes that
`the Court “invited Lyft to file a motion on the issue” during the Case Management Conference held
`on January 27, 2022, yet Lyft declined to file a motion until April 18, 2022. Dkt. 103 at 7.
`Third, Lyft concedes that the PTAB has not yet instituted IPR, where AGIS Software has
`yet to file its patent owner preliminary responses. See Dkt. 103. An institution decision would not
`be expected until at least August 2022. Accordingly, this sub-factor weighs against issuing a stay
`where the PTAB has yet to decide whether to grant Lyft’s IPRs. See SAGE Electrochromics, 2015
`WL 66415, at *4. In addition, “reexamination may take as long as three years,” and while “‘delay
`inherent in the reexamination process does not constitute, by itself, undue prejudice,’” delay is
`certainly a factor to be considered.” Wordtech Sys., 2010 WL 1641510, at *2. While Lyft alleges
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`DEFENDANT AGIS SOFTWARE DEVELOPMENT LLC’S RESP. IN OPP. TO LYFT, INC. MOTION TO STAY
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`RUSS AUGUST & KABAT
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`that AGIS Software’s request for extensions on its Patent Owner Reponses demonstrates delay,
`AGIS Software is entitled to properly review and address the disputes underlying the reexaminations
`in order to adequately respond. Contrary to Lyft’s allegations, AGIS Software has not “taken
`affirmative actions to slow the progress of the EPRs.” Dkt. 103 at 8.
`Fourth, while Lyft alleges that there is no prejudice to AGIS Software where parties are not
`direct competitors, “[w]hether the parties are sole competitors is only one factor courts consider.”
`Skillz, 2022 WL 1189882, at *6. The case schedule in the present litigation will remain the same,
`regardless of whether the case is stayed. AGIS Software’s CEO and primary witness, Malcolm K.
`Beyer, Jr. is of advanced age and a lengthy stay would result in undue prejudice to Mr. Beyer and
`AGIS Software. A stay would prevent AGIS Software from actively participating in this case during
`the pendency of Lyft’s IPR petitions and the reexaminations, and would compress the remaining
`stages of litigation into a significantly shorter time period. See Skillz, 2022 WL 1189882, at *7. In
`addition, Lyft requests a twelve- to eighteen-month schedule extension pending its IPR petitions
`and EPRs. Such an extension is extremely prejudicial to AGIS Software where the IPR has not yet
`been instituted, there is no estoppel effect with respect to the EPRs, and there would be no
`corresponding extension for discovery in the current case.
`Lastly, Lyft’s allegations of its own undue prejudice in the absence of a stay are without
`merit. The present declaratory judgment action was brought by Lyft and it is AGIS Software who
`is defendant against Lyft’s claim of non-infringement of the Asserted Patents. Additionally, Lyft’s
`claims alleging they are litigating with respect to invalid claims with respect to the ’970 Patent are
`unpersuasive where, as stated above, there is no operative complaint where Lyft’s motion for leave
`to file its amended complaint is pending and a hearing date is set forth July 23, 2022. Accordingly,
`this subfactor weighs against a stay.
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`The Stage of the Case Does Not Favor a Stay
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`C.
`The stage of the case does not favor a stay where the initial case management conference
`was conducted on January 20, 2022, parties have exchanged infringement and invalidity contentions
`as well as accompanying document productions, the Court ordered and parties engaged in
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`DEFENDANT AGIS SOFTWARE DEVELOPMENT LLC’S RESP. IN OPP. TO LYFT, INC. MOTION TO STAY
`5:21-cv-04653-BLF
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`RUSS AUGUST & KABAT
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`jurisdictional discovery including written discovery, document, productions, and a Rule 30(b)(6)
`deposition, and have made their claim construction disclosures.
`Accordingly, the balance of the factors weighs against a stay and Lyft has failed to meet its
`burden for showing a stay is appropriate here.
`V. CONCLUSION
`For the foregoing reasons, Defendant AGIS Software respectfully requests that Lyft’s
`Motion to Stay be denied in its entirety.
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`DEFENDANT AGIS SOFTWARE DEVELOPMENT LLC’S RESP. IN OPP. TO LYFT, INC. MOTION TO STAY
`5:21-cv-04653-BLF
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`Case 5:21-cv-04653-BLF Document 120 Filed 05/02/22 Page 10 of 11
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`DATED: May 2, 2022
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`RUSS AUGUST & KABAT
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`Respectfully submitted,
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`RUSS AUGUST & KABAT
`By: /s/ Benjamin T. Wang
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` Benjamin T. Wang
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`FABRICANT LLP
`Alfred R. Fabricant
`ffabricant@fabricantllp.com
`Peter Lambrianakos
`plambrianakos@fabricantllp.com
`Vincent J. Rubino, III
`vrubino@fabricantllp.com
`411 Theodore Fremd Avenue, Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
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`Benjamin T. Wang (CA SBN 228712)
`bwang@raklaw.com
`Minna Y. Chan (CA SBN 305941)
`mchan@raklaw.com
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, California 90025
`Telephone: (310) 826-7474
`Facsimile: (310) 826-9226
`
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`Attorneys for Defendant
`AGIS Software Development LLC
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`10
`DEFENDANT AGIS SOFTWARE DEVELOPMENT LLC’S RESP. IN OPP TO LYFT, INC. MOTION TO STAY
`5:21-cv-04653-BLF
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`Case 5:21-cv-04653-BLF Document 120 Filed 05/02/22 Page 11 of 11
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`CERTIFICATE OF SERVICE
`The undersigned hereby certified that a true and correct copy of the above and foregoing
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`document has been served via electronic mail on May 2, 2022 to all counsel of record.
`I declare under the penalty of perjury that the foregoing is true and correct.
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`DATED: May 2, 2022
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`/s/ Benjamin T. Wang
` Benjamin T. Wang
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`11
`DEFENDANT AGIS SOFTWARE DEVELOPMENT LLC’S RESP. IN OPP TO LYFT, INC. MOTION TO STAY
`5:21-cv-04653-BLF
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`RUSS AUGUST & KABAT
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