Case 5:21-cv-04653-BLF Document 132-2 Filed 05/10/22 Page 1 of 57
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`Exhibit 17
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`Exhibit 17
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`Case 5:21-cv-04653-BLF Document 132-2 Filed 05/10/22 Page 2 of 57
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
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`LYFT, INC.,
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`PLAINTIFF,
`
`VS.
`AGIS SOFTWARE DEVELOPMENT LLC,
`DEFENDANT.
`
`_______________________________
`TRANSCRIPT OF PROCEEDINGS
`BEFORE THE HONORABLE BETH LABSON FREEMAN
`UNITED STATES DISTRICT JUDGE
`A P P E A R A N C E S
`
`CV-21-4653-BLF
`SAN JOSE, CALIFORNIA
`JANUARY 27, 2022
`PAGES 1-56
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`)))))))))))
`
`FOR THE PLAINTIFF:
`
`BY: JEREMY TAYLOR
`BAKER BOTTS L.L.P.
`101 CALIFORNIA STREET, SUITE 3600
`SAN FRANCISCO, CA 94111
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`FOR THE DEFENDANT:
`
`BY: MINNA Y. CHAN
` DANIEL B KOLKO
`RUSS, AUGUST & KABAT
`12424 WILSHIRE BLVD, 12TH FLOOR
`LOS ANGELES, CA 90025
`
`APPEARANCES CONTINUED ON THE NEXT PAGE
`OFFICIAL COURT REPORTER:
`SUMMER FISHER, CSR, CRR
`CERTIFICATE NUMBER 13185
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`PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY
`TRANSCRIPT PRODUCED WITH COMPUTER
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`UNITED STATES COURT REPORTERS
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`APPEARANCES CONTINUED:
`FOR THE PLAINTIFF:
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`FOR THE DEFENDANT:
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`BY: BETHANY SALPIETRA
`BAKER BOTTS L.L.P.
`2001 ROSS AVENUE, SUITE 900
`DALLAS, TX 75201
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`BY: VINCENT JOSEPH RUBINO, III
`BROWN RUDNICK LLP
`7 TIMES SQUARE
`NEW YORK, NY 10036
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`JANUARY 27, 2022
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`SAN JOSE, CALIFORNIA
`P R O C E E D I N G S
`(COURT CONVENED AT 10:46 A.M.)
`THE CLERK: CALLING CASE 21-4653. LYFT VERSUS AGIS
`SOFTWARE DEVELOPMENT.
`COUNSEL, IF YOU WOULD PLEASE STATE YOUR APPEARANCES. AND
`IF WE COULD BEGIN WITH PLAINTIFF AND THEN MOVE TO DEFENDANT.
`MR. TAYLOR: THIS IS JEREMY TAYLOR WITH BAKER BOTTS
`ON BEHALF OF DECLARATORY JUDGMENT PLAINTIFF, LYFT INC. WITH ME
`IS BETHANY SALPIETRA.
`I WILL BE ARGUING THE JURISDICTIONAL MOTION, BETHANY WILL
`HANDEL THE TRANSFER MOTION, AS WELL AS ANY ISSUES WITH RESPECT
`TO THE CMC.
`ALSO HERE, BUT NOT PARTICIPATING IN THE ARGUMENTS, ARE
`COUNSEL WITH LYFT, IN-HOUSE COUNSEL FOR LYFT, TINA LOWE AND
`SARA GIARDINA.
`THE COURT: GOOD. AND WELCOME TO YOU, I'M GLAD YOU
`ARE JOINING IN.
`MS. CHAN: GOOD MORNING, YOUR HONOR.
`THIS IS MINNA CHAN ON BEHALF OF THE PLAINTIFF. WITH ME IS
`MY COLLEAGUE, DANIEL KOLKO, FROM RUSS AUGUST & KABAT, AND ALSO
`VINCENT RUBINO FROM FABRICANT.
`THE COURT: SO WHEN YOU SAY PLAINTIFF, YOU DON'T
`ACTUALLY MEAN PLAINTIFF, YOU MEAN DEFENDANT.
`MS. CHAN: I APOLOGIZE, YOUR HONOR.
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`I'M IN THE MIDDLE OF TRIAL, SO I'M IN THE PLAINTIFF
`MINDSET, YOUR HONOR. YES, ON BEHALF OF DEFENDANT AGIS.
`THE COURT: SO JUST TO BE CLEAR, MR. TAYLOR AND
`MS. SALPIETRA ARE APPEARING FOR LYFT, AND MS. CHAN AND
`MR. KOLKO AND MR. RUBINO ARE APPEARING ON BEHALF OF AGIS,
`CORRECT?
`MS. CHAN: YES.
`THE COURT: OKAY. ESPECIALLY WITH A RECORDING. AND
`WE HAVE A COURT REPORTER HERE, AND WE WILL MAKE SURE THAT
`THAT'S ALL CLEAR.
`OKAY. WELL THIS IS A LITTLE BIT OF A PUZZLE FOR ME TO
`UNWIND, AND OF COURSE YOU HAVE BEEN BRIEFING THIS FOR SOME
`TIME, AND THE LANDSCAPE HAS CHANGED PRETTY DRAMATICALLY SINCE
`THE FIRST MOTION WAS FILED IN THIS CASE.
`SO MS. CHAN, SOME OF WHAT YOU HAVE ASKED FOR IS REALLY
`QUITE DIFFERENT THAN WHEN YOU INITIALLY LAID OUT THE REASONS
`THAT WOULD SUPPORT YOUR REQUEST.
`LET ME JUST SAY AT THE BEGINNING ON THE MOTION TO
`TRANSFER, THERE'S NOTHING MORE RIDICULOUS THAN CAUSING THIS
`CASE TO BECOME THE PING PONG BALL THAT YOUR MOTION WOULD
`SUGGEST, GIVEN JUDGE GILSTRAP'S DISMISSAL OF THE -- YOUR CASE
`AGAINST LYFT IN THE EASTERN DISTRICT OF TEXAS, AND MY
`UNDERSTANDING THAT THE UBER CASE HAS BEEN DISMISSED. THERE'S
`NOTHING IN ED TEX ANYMORE THAT DEALS WITH THIS MATTER, AND
`JUDGE GILSTRAP HAS DISMISSED IT.
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`ON THE PERSONAL JURISDICTION ISSUE, HOWEVER, MR. TAYLOR, I
`THINK YOU ALL BUT ACKNOWLEDGE THAT YOU NEED MORE TO SHOW
`PERSONAL JURISDICTION, AND THAT YOU ARE PLANNING TO AMEND THE
`COMPLAINT TO PERHAPS BRING IN AGIS, INC., AND TO MAKE FURTHER
`ALLEGATIONS REGARDING EITHER AGENCY OR ALTER EGO ISSUES.
`SO CUTTING THROUGH IT ALL, I'M NOT SURE WE ARE GOING TO
`MAKE MUCH PROGRESS HERE. SO LET ME, MS. CHAN, ON YOUR MOTION
`TO TRANSFER, CLEARLY YOU'VE ESTABLISHED THAT LYFT'S CASE
`AGAINST YOUR CLIENT COULD HAVE BEEN BROUGHT IN THE EASTERN
`DISTRICT OF TEXAS, THERE'S NO QUESTION ABOUT THAT, BUT AT LEAST
`I DON'T THINK THERE IS -- IT'S THE OTHER FACTORS THAT I HAVE TO
`CONSIDER. AND JUDGE GILSTRAP HAS ALREADY TAKEN A LOOK AT ALL
`OF THAT AND MADE THAT DETERMINATION THAT THE CASE DIDN'T BELONG
`THERE.
`SO ON JUST THE MOTION TO TRANSFER, IS THERE MORE ARGUMENT
`THAT YOU WOULD LIKE TO MAKE ON YOUR MOTION?
`MS. CHAN: SURE, YOUR HONOR.
`MY COLLEAGUE, VINCENT RUBINO, WILL ACTUALLY BE HANDLING
`THE ARGUMENT.
`THE COURT: GOOD. ALL RIGHT. THANK YOU, MR. RUBINO.
`MR. RUBINO: GOOD MORNING, YOUR HONOR.
`WITH REGARD TO THE MOTION TO TRANSFER, THE ISSUE IS THAT
`JUDGE GILSTRAP NEVER REACHED THAT DETERMINATION, IT WAS ONLY A
`MATTER OF WHETHER THERE WAS PROPER VENUE UNDER TC HEARTLAND IN
`1400(B), WHETHER LYFT HAD A REGULAR AND ESTABLISHED PLACE OF
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`BUSINESS.
`WE MADE A LOT OF ARGUMENT IN THAT CASE ABOUT WHY THE CASE,
`WHY TRANSFER WOULDN'T HAVE BEEN APPROPRIATE TO NORTHERN
`DISTRICT OF CALIFORNIA. AND JUDGE PAYNE AND JUDGE GILSTRAP
`ACKNOWLEDGED THAT LYFT DIDN'T REALLY BRIEF THE ISSUE WELL
`THERE.
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`THE COURT: THEY BRIEFED IT PRETTY WELL HERE, THAT'S
`ALL I CARE ABOUT.
`MR. RUBINO: BUT THAT ISSUE WAS NEVER REALLY BEFORE
`THE COURT.
`THE COURT: THAT'S FAIR. THANK YOU.
`MR. RUBINO: WITH REGARD TO THE TRANSFER FACTORS,
`IT'S RELATIVELY UNDISPUTED THAT LYFT HAS FACILITIES IN
`CALIFORNIA, THEY ALSO HAVE FACILITIES IN TEXAS. THEY HAVE
`WITNESSES IN CALIFORNIA, THEY HAVE WITNESSES IN TEXAS.
`THERE'S ONE WHOSE DEPOSITION I TOOK IN THE TEXAS ACTION
`WHO HAS KNOWLEDGE ABOUT THE CASE AND ABOUT THE PRODUCTS, AND
`LYFT PUT HIM UP. HE GAVE TESTIMONY IN A HEARING IN TEXAS, AND
`HE'S THERE. SO IN TERMS OF THE CENTER OF GRAVITY FOR THOSE
`FACTORS, IT'S SPLIT BETWEEN, AT LEAST TEXAS AND CALIFORNIA.
`THE COURT: SO THAT FACTOR WOULD BE NEUTRAL, IS WHAT
`YOU ARE TELLING ME.
`MR. RUBINO: WELL AT LEAST FOR LYFT'S SIDE.
`FOR AGIS'S SIDE OF THAT FACTOR, AGIS HAS ITS BUSINESS IN
`TEXAS. ITS WITNESSES, TO THE EXTENT THAT LYFT SAYS THEY DON'T
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`LIVE THERE, THEY AT LEAST TRAVEL TO TEXAS FOR BUSINESS, THEY
`REGULARLY HAVE MEETINGS THERE. AGIS'S CEO IS FROM FLORIDA. HE
`HAS HAD FAMILY LAND IN THE EASTERN DISTRICT FOR OVER A HUNDRED
`YEARS. HIS PRESIDENT, THE PRESIDENT OF THE COMPANY, HE LIVES
`IN KANSAS, AND THEY REGULARLY TRAVEL TO MEET EACH OTHER IN THAT
`DISTRICT, WHICH IS CONVENIENT TO BOTH OF THEM. THEY ALSO HAVE
`SERVERS --
`THE COURT: WELL, I DON'T THINK BEING ABLE TO HAVE A
`DRINK AFTER YOUR DEPOSITION IS ONE OF THE FACTORS, AND THAT'S
`REALLY ALL YOU ARE TELLING ME ABOUT THIS. THAT'S REALLY --
`NEITHER OF THESE WITNESSES LIVES IN TEXAS. WE ARE TALKING
`ABOUT -- SO LET'S MOVE ON FROM THAT.
`MR. RUBINO: YOUR HONOR, THEY ALSO HAVE THEIR SERVERS
`AND THEIR SERVER FARM IN TEXAS WITH WITNESSES THERE WHO ARE
`KNOWLEDGEABLE ABOUT THEIR BUSINESS. THAT IS WHERE THEY
`MAINTAIN THE SERVERS THAT ALLEGEDLY PRACTICE THE PATENTS WHICH
`WOULD BE RELEVANT TO THIS CASE. AND THAT IS IN THEIR FACILITY
`IN THE EASTERN DISTRICT OF TEXAS, IT'S BEEN THERE SOME YEARS.
`ADDITIONALLY, IN TERMS OF THIRD PARTY WITNESSES, TO THE
`EXTENT THERE ARE ANY, I WOULD POINT OUT THAT LYFT ONLY
`IDENTIFIES ALLEGED PRIOR ARTISTS, IF THAT'S THE RIGHT WORD,
`ALLEGED PRIOR ART INVENTORS OR WITNESSES. HOWEVER, THIS CASE
`IS ONLY A NON-INFRINGEMENT DECLARATORY JUDGMENT AT THE MOMENT,
`SO INVALIDITY ISN'T QUITE AN ISSUE YET.
`AND ON THE FRONT OF AGIS'S SIDE, THERE IS AT LEAST ONE
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`WITNESS, A THIRD PARTY WITNESS, HIS NAME IS ERIC ARMSTRONG, AND
`HE'S A WITNESS THAT THE FEDERAL CIRCUIT REVIEWED AND LOOKED AT
`IN CONNECTION WITH A MANDAMUS PETITION FILED BY APPLE SEVERAL
`YEARS AGO TO TRY TO TRANSFER OUT OF THE EASTERN DISTRICT, WHICH
`BY THE WAY, THE FEDERAL CIRCUIT DENIED THAT MANDAMUS AND FOUND
`THAT AGIS'S PRESENCE IN TEXAS IS NOT EPHEMERAL TO REAL
`BUSINESS.
`AND FOR THAT ONE WITNESS, AT LEAST THAT ONE WITNESS, WE
`ARE PRETTY CONFIDENT WE CAN'T GET HIM TO COME TO CALIFORNIA.
`HE WAS VERY RELUCTANT TO GO TO THE EASTERN DISTRICT TO APPEAR
`IN THE EASTERN DISTRICT OF TEXAS WHERE HE COULD BE SUBPOENAED,
`BUT WE ARE FAIRLY CONFIDENT HE'S NOT GOING TO COME TO THE
`NORTHERN DISTRICT OF CALIFORNIA.
`THE COURT: HE'S AN EXPERT?
`MR. RUBINO: NO, HE IS A CONSULTANT, BUT A THIRD
`PARTY CONSULTANT. AND HE WORKS FOR HIS OWN COMPANY IN THE
`EASTERN DISTRICT OF TEXAS. HE'S BEEN THERE FOR YEARS. HE'S
`RELEVANT TO, AT LEAST MARKING OF THE PATENTS.
`PEOPLE HAVE TAKEN HIS DEPOSITION NUMEROUS TIMES, AND I CAN
`TELL YOU, YOUR HONOR, HAVING DEFENDED HIM, I AM PRETTY
`CONFIDENT THAT HE'S NOT GOING TO RESPOND WELL TO BEING ASKED TO
`COME TO THE NORTHERN DISTRICT OF CALIFORNIA. AND THE ONLY WAY
`WE ARE GOING TO GET HIM TO COME TO TRIAL IS IN THE EASTERN
`DISTRICT.
`SO IN TERMS OF THIRD PARTIES, THERE'S REALLY NOTHING OTHER
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`THAN AGIS'S WITNESSES AND FACTORS GOING THERE. SO OTHERWISE WE
`ARE LOOKING AT TWO PARTIES, ONE WHO SAYS ALL OF ITS STUFF IS IN
`CALIFORNIA, BUT THEY DO HAVE THINGS IN TEXAS. THEY ALLEGE WE
`ARE ALL IN FLORIDA, BUT WE DO HAVE THINGS IN TEXAS. WE HAVE
`BEEN THERE FOR MANY YEARS. THE SOURCE CODE OF LYFT AND OF
`OTHERS, IS WITH AGIS'S EXPERTS IN THE EASTERN DISTRICT OF
`TEXAS. ALL OF THE FACTS FROM ALL OF THE LICENSING THAT
`EVERYONE ALLEGES HAS OCCURRED HAVE BEEN THERE IN THAT --
`THE COURT: I'M SORRY, YOU SAID THE SOURCE CODE?
`MR. RUBINO: YES, YOUR HONOR.
`SO A LITTLE BIT MORE ABOUT THE STATUS OF THE --
`THE COURT: SO -- OKAY. THE ONLY REASON THAT I
`HIGHLIGHT THAT IS IN YOUR CASE MANAGEMENT STATEMENT, YOU GO OFF
`THE DEEP END ABOUT THE PROTECTIVE ORDER MEANS THAT ALL THE
`DISCOVERY IN THE TEXAS CASE WILL NOT COME INTO THIS CASE. SO
`LET'S NOT ARGUE THAT IF THAT'S THE POINT YOU ARE MAKING.
`MR. RUBINO: YOUR HONOR, THE POINT I'M MAKING IS THAT
`AGIS'S EXPERT, WITH THE KNOWLEDGE WHO WILL LIKELY BE COMING
`INTO THIS CASE, IS THERE IN THE EASTERN DISTRICT OF TEXAS AS
`WELL.
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`THE COURT: THAT'S FAIR. THAT'S MR. ARMSTRONG?
`MR. RUBINO: TO THE EXTENT -- MR. ARMSTRONG IS A
`DIFFERENT WITNESS.
`THE COURT: OH, I'M SORRY. YOU HAVE AN EXPERT -- BUT
`AS AN EXPERT -- I'M NOT SURE THAT IS REALLY OF CONCERN TO ME
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`WHETHER YOUR CHOSEN EXPERT WILL TRAVEL TO THE COURT THAT THE
`CASE IS.
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`MR. RUBINO: YOUR HONOR, THE ISSUE IS A LITTLE BIT
`DIFFERENT FROM WHAT YOUR HONOR WOULD SEE IN A STANDARD TRANSFER
`CASE WHERE IT'S THE FIRST CASE FILED AND NOTHING HAS HAPPENED
`YET.
`HERE, AGIS HAS AN EXPERT IN THE EASTERN DISTRICT, HE'S
`BEEN AGIS'S EXPERT FOR FIVE YEARS. LYFT CERTAINLY ALLEGES THAT
`HE HAS KNOWLEDGE FROM PAST CASES, THAT HE KNOWS ABOUT WHAT
`OTHER PRODUCTS DID, THAT HE HAS DOCUMENTS FROM THOSE CASES,
`PRIOR REPORTS. I AM CERTAIN THEY ARE GOING TO ASK FOR HIS
`PRIOR REPORTS.
`ALL OF THAT IS IN THE EASTERN DISTRICT. AND EVEN IF AGIS
`DOESN'T CHOOSE TO USE HIM AGAIN, HE'S STILL THERE AND HE'S
`GOING TO HAVE TO BE A WITNESS IN THE SOURCE GROUP.
`AND SO IT'S DIFFERENT THAN, WE PICKED AN EXPERT WHO IS
`THERE AND WE ARE TRYING TO PLANT THE FLAG THERE WITH AN EXPERT.
`THIS IS SOMEONE WHO, WHETHER WE LIKE IT OR NOT, IS GOING TO BE
`REQUESTED BY LYFT TO GIVE US DOCUMENTS.
`SO FROM THAT REGARD, THERE IS ALSO THAT OTHER POTENTIAL
`THIRD PARTY AND SOURCE OF PROOF IN THE EASTERN DISTRICT OF
`TEXAS.
`WITH ALL -- PUTTING ALL OF THAT ASIDE, I KNOW YOUR HONOR
`SAID THE RESULT MAY BE, I THINK YOUR HONOR SAID RIDICULOUS, BUT
`IF YOUR HONOR DIDN'T SAY THAT --
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`THE COURT: YOU KNOW, YES, I GUESS I'M JUST SAYING IT
`WOULD BE REALLY HARD TO LOOK MY FRIEND JUDGE GILSTRAP IN THE
`FACE AND SAY, I KNOW YOU VOLLEYED THAT CASE TO ME AND I'M
`VOLLEYING IT RIGHT BACK TO YOU.
`I MEAN, THINK ABOUT IT, CASES NEED TO BE PRACTICAL.
`MR. RUBINO: YOUR HONOR, AND THE PROBLEM IS THAT
`THERE IS AN IMPRACTICALITY WITH, UNFORTUNATELY THE TC HEARTLAND
`LAW.
`AND THAT'S REALLY THE PROBLEM, IS IF LYFT HAD NOT SUED
`AGIS FOR DECLARATORY JUDGMENT, IF LYFT HADN'T FILED THIS SUIT,
`THAT WOULDN'T BE A POSSIBILITY, THE CASE WOULD HAVE GONE AWAY,
`IT WOULD HAVE BEEN DISMISSED, PERHAPS THE PARTIES WOULD HAVE
`JUST RESORTED TO REGULAR LICENSING, PERHAPS AGIS WOULD HAVE
`AVAILED ITSELF OF CALIFORNIA AND FILED THIS CASE AS THE
`PLAINTIFF, BUT IT DIDN'T.
`LYFT PLANTED THE FLAG TO TRY TO, YOU KNOW, PLANT ITS FLAG
`FOR VENUE, SO IT HAS TO LIVE WITH THAT DECISION. AND THAT
`GIVES THE COURT IN TEXAS ESSENTIALLY WHAT IT WOULD HAVE NEEDED,
`WHICH IS IT COULD HAVE BEEN BROUGHT THERE AND IT WOULD HAVE
`STAYED THERE. AND THAT CASE HAD PROCEEDED ALL THE WAY UP
`THROUGH EXPERT DISCOVERY.
`MY CLIENT, WHO IS 83 YEARS OLD, HE WOULD HAVE HAD A TRIAL
`NEXT MONTH, NOW WE COULD BE BACK AT SQUARE ONE. AND THAT'S THE
`REALITY. WHICH IN TERMS OF FAIRNESS, THERE'S REALLY NOTHING
`UNFAIR TO LYFT ABOUT THIS CASE BEING TRANSFERRED THERE, WHEREAS
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`FOR MY CLIENT, HE MAY HAVE TO WAIT ANOTHER TWO YEARS IN THIS
`DISTRICT, ALTHOUGH I ASSUME YOUR HONOR IS GOING TO DO HER BEST
`EFFORTS TO TRY CASES EXPEDIENTLY, BUT IT MAY BE SOME TIME, WE
`UNDERSTAND, BEFORE OUR CLIENT WILL SEE A COURTROOM, IF HE EVEN
`IS ABLE TO AT THAT POINT.
`SO IN TERMS OF FAIRNESS AND WHAT ONE WOULD BE ABLE TO LOOK
`JUDGE GILSTRAP IN THE EYE FOR, WE THINK THAT IS CERTAINLY FAIR,
`PARTICULARLY GIVEN THE FACTORS HERE AND THE FACTS HERE, WHERE
`THE PARTIES ARE LOCATED, AND THE PRECEDENT BY THE FEDERAL
`CIRCUIT ABOUT THE STATUS OF THIS COMPANY.
`THE COURT: OKAY. WELL, THERE WAS NO SUGGESTION IN
`MR. TAYLOR'S PAPERS THAT AGIS'S SOFTWARE WAS A SHAM COMPANY.
`WHETHER IT'S ALTER EGO, HAS NOTHING TO DO WITH SHAM. AND THE
`FEDERAL CIRCUIT HAS TAKEN A LOOK AT THIS, AND SO YOU ARE RIGHT,
`WE MOVE ON FROM THAT.
`AND AS I SAID, I THINK THAT THE ISSUE OF WHETHER THIS
`DECLARATORY JUDGMENT ACTION COULD HAVE BEEN BROUGHT IN THE
`EASTERN DISTRICT OF TEXAS, THAT'S WHERE YOUR COMPANY IS
`LOCATED, SO I DON'T THINK THAT'S REALLY AT ISSUE EITHER, IT'S
`THESE OTHER BALANCING FACTORS.
`ALL RIGHT. LET ME TURN TO MR. TAYLOR, OR IS IT
`MS. SALPIETRA WHO IS GOING TO BE ARGUING THIS?
`MS. SALPIETRA: IT WILL BE ME, YOUR HONOR.
`THE COURT: THANK YOU.
`MS. SALPIETRA: GOOD MORNING.
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`SO IF I UNDERSTOOD COUNSEL FOR AGIS CORRECTLY, THEY ARE
`ALLEGING THAT VARIOUS -- THAT THE PARTY WITNESS, AND THIRD
`PARTY WITNESS FACTORS, SUPPOSEDLY ARE IN FAVOR OF TRANSFER.
`THAT'S JUST NOT THE CASE.
`AS YOUR HONOR POINTED OUT, THERE ARE ZERO PARTY WITNESSES
`ON AGIS'S SIDE THAT RESIDE IN THE EASTERN DISTRICT OF
`CALIFORNIA. EVERY OFFICER IDENTIFIED FOR AGIS IS LOCATED IN
`FLORIDA. ON THE OTHER HAND, ALL OF LYFT'S PERTINENT WITNESSES
`HAVING RELEVANT KNOWLEDGE TO THIS CASE ARE LOCATED IN THIS
`DISTRICT.
`MR. RUBINO IDENTIFIED A WITNESS THAT HE HAD TAKEN THE
`DEPOSITION OF, THAT WITNESS THAT HE'S REFERRING TO IS
`MR. LOOSEN WHO WAS -- WHO ONLY OFFERED TESTIMONY IN THE EASTERN
`DISTRICT OF TEXAS CASE IN SUPPORT OF LYFT'S MOTION TO DISMISS
`FOR IMPROPER VENUE.
`ON TO THE THIRD PARTY WITNESSES FACTOR THAT MR. RUBINO
`RAISED, AGIS HAS IDENTIFIED TWO INDIVIDUALS WHO ARE LOCATED IN
`THE EASTERN DISTRICT OF TEXAS, THAT BEING MR. ERIC ARMSTRONG,
`AN AFFILIATE OF AGIS, OR SORRY, A FULL-TIME CONSULTANT FOR AN
`AFFILIATE OF AGIS, AND THEIR EXPERT MR. MCALEXANDER.
`I UNDERSTAND -- YOUR POINT WAS WELL RECEIVED BY ME,
`WHETHER THE EXPERT CAN BE CONSIDERED AS AN EXPERT, IS SOMETHING
`TO CONSIDER UNDER THIS FACTOR, IS A QUESTION. BUT TO THE
`EXTENT THAT YOUR HONOR BELIEVES THAT MR. MCALEXANDER CAN BE
`COUNTED UNDER THIS FACTOR, I WILL ALSO RAISE THAT THERE ARE
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`THREE OTHER EXPERTS OF AGIS'S THAT ARE LOCATED IN CALIFORNIA
`WHO THIS DISTRICT WOULD BE FAR MORE CONVENIENT FOR, THOSE
`WITNESSES BEING AGIS'S DAMAGES EXPERT FROM THE EASTERN DISTRICT
`OF TEXAS CASE, IN ADDITION TO TWO SOURCE CODE EXPERTS IN THE
`EASTERN DISTRICT OF TEXAS CASE.
`IN ADDITION TO THOSE THREE EXPERTS LOCATED IN THE EASTERN
`DISTRICT OF TEXAS, LYFT HAS ALSO IDENTIFIED TEN OTHERS.
`THE COURT: YOU SAID THAT THOSE THREE EXPERTS ARE IN
`CALIFORNIA?
`MS. SALPIETRA: CORRECT.
`THE COURT: OKAY.
`MS. SALPIETRA: IN ADDITION TO THOSE THREE AGIS
`EXPERTS THAT ARE LOCATED IN CALIFORNIA, LYFT HAS ALSO
`IDENTIFIED TEN OTHER INDIVIDUALS WHO ARE RELEVANT TO THIS
`FACTOR. ONE BEING A DEVELOPER OF A PRIOR ART SYSTEM THAT WAS
`CALLED FBCB2, AND THAT INDIVIDUAL BEING DR. NEAL SEIGEL WHO
`SUBMITTED AN EXPERT REPORT IN THE EASTERN DISTRICT OF TEXAS
`CASE, IN ADDITION TO NINE OTHER INVENTORS OF PRIOR ART, PATENTS
`AND PUBLICATIONS.
`GIVEN THAT LYFT HAS IDENTIFIED 13 INDIVIDUALS IN
`COMPARISON TO AGIS'S TWO IDENTIFIED INDIVIDUALS, THIS FACTOR
`WEIGHS IN FAVOR OF KEEPING THE CASE IN THIS DISTRICT.
`AS FAR AS THE EASE OF ACCESS TO EVIDENCE FACTOR, COUNSEL
`FOR AGIS RAISED THAT AGIS HAS CERTAIN ASSETS IN THE EASTERN
`DISTRICT OF TEXAS. BUT AS THE FEDERAL CIRCUIT HAS CONFIRMED ON
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`MULTIPLE OCCASIONS, THE PREDOMINANT SOURCES OF PROOF IN PATENT
`INFRINGEMENT CASES COME FROM THE ALLEGED INFRINGER.
`LYFT IS THE ALLEGED INFRINGER IN THIS CASE, AND ALL OF ITS
`RELEVANT EVIDENCE IS LOCATED IN THIS DISTRICT. INDEED, THIS
`DISTRICT IS WHERE THE DEVELOPMENT OF THE ACCUSED PRODUCTS
`OCCURS, AND IT'S ALSO WHERE LYFT KEEPS ITS DOCUMENTS, SOURCE
`CODE AND OTHER EVIDENCE.
`ONE OF THE OTHER FACTORS THAT -- OR ONE OF THE OTHER
`ISSUES, I GUESS THAT MR. RUBINO RAISED, WAS THE TIME TO TRIAL,
`WHICH GOES TO THE RELATIVE COURT CONGESTION FACTOR CONSIDERED
`BY THE NINTH CIRCUIT. ON THIS FACTOR, THE FEDERAL CIRCUIT HAS
`OFFERED THREE PARTICULARLY RELEVANT CONSIDERATIONS.
`FIRST, THE FEDERAL CIRCUIT HAS RECOGNIZED THAT THIS FACTOR
`IS OF MINOR IMPORTANCE. SECOND, IT HAS RECOGNIZED THIS A
`COURT'S GENERAL ABILITY TO SET A FAST-PACED SCHEDULE IS NOT
`PARTICULARLY RELEVANT, AND THAT THIS FACTOR SHOULDN'T BE
`ASSIGNED TO ANY SIGNIFICANT WEIGHT UNLESS THERE'S AN IMPORTANT
`ENOUGH REASON FOR MORE RAPID DISPOSITION OF THIS CASE.
`IN SUPPORT OF THIS FACTOR, AGIS RAISES THAT THE AGE OF
`MR. BEYER IS A REASON, AND LYFT RESPECTFULLY DISAGREES,
`MR. BEYER'S ADVANCED AGE IS NOT A CREDIBLE REASON TO GIVE THIS
`FACTOR ANY WEIGHT. THE EASTERN DISTRICT OF TEXAS HAS ALREADY
`RULED THAT BEYER CANNOT BRING HIS CLAIMS AGAINST LYFT IN THE
`EASTERN DISTRICT OF TEXAS, AND THUS CANNOT SERVE AS A REASON
`FOR A MORE RAPID CASE DISPOSITION.
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`ADDITIONALLY, THE OTHER FACTORS TO WEIGH IN TERMS OF
`KEEPING THE CASE IN THE NORTHERN DISTRICT OF TEXAS INCLUDE THE
`LOCAL AND FORUM CONTROVERSY FACTOR, AND -- SORRY, IN ADDITION
`TO PLAINTIFF'S CHOICE OF FORUM FACTORS, THE OTHER TWO FACTORS
`BEING NEUTRAL.
`THE COURT: OKAY. THANK YOU.
`MR. RUBINO, I WILL GIVE YOU A MOMENT TO FINISH UP AND THEN
`WE WILL GO TO THE MOTION TO DISMISS.
`MR. RUBINO: THANK YOU, YOUR HONOR.
`JUST A COUPLE OF POINTS OF CLARIFICATION.
`ONE IS THAT MS. SALPIETRA SAID THAT ALL OF LYFT'S EVIDENCE
`IS IN THE NORTHERN DISTRICT OF CALIFORNIA. I THINK THAT'S JUST
`NOT TRUE. AS A MATTER OF FACT, IT MAY BE THAT THEY ARGUED THAT
`MORE OF IT IS, BUT THERE'S NO DISPUTE THAT THEY HAVE FACILITIES
`AND SIGNIFICANT OPERATIONS AND RELEVANT DISCOVERY AND RELEVANT
`INFORMATION ABOUT THEIR CONDUCT THAT HAPPENS IN THE EASTERN
`DISTRICT OF TEXAS, AND THAT HAPPENS PARTICULARLY IN DALLAS AND
`VENTURES INTO THE EASTERN DISTRICT OF TEXAS.
`NOW IT MAY HAVE BEEN THAT THERE ISN'T A PHYSICAL FACILITY
`THERE, BUT THAT DOES NOT MEAN THAT THERE AREN'T RELEVANT FACTS
`RELATED TO THEIR BUSINESS THERE, AND THEY DON'T HAVE PEOPLE WHO
`WORK FROM THERE, WORK FROM HOME, RELEVANT INFORMATION FOR
`PURPOSES OF TRANSFER, AND THE WEIGHT OF THE EVIDENCE, AND THE
`LOCATIONS OF THE EVIDENCE AND SOURCES OF PROOF.
`IN TERMS OF THE WITNESS, MR. LOOSEN, MS. SALPIETRA SAYS
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`THAT HE DOESN'T HAVE ANY INFORMATION OTHER THAN FOR TRANSFER.
`HOWEVER, IN THE DECLARATION HE PUT IN THE TEXAS CASE, HE SAID
`HE WAS KNOWLEDGEABLE ABOUT THE OPERATION OF THE ACCUSED
`PRODUCTS AND HE ACTUALLY TESTIFIED ABOUT LOCATIONS OF LYFT
`SERVERS, ITS BUSINESS, HE KNEW ABOUT ITS MARKETING. HE WAS IN
`CHARGE OF THE ENTIRE BUSINESS UNIT FOR, IT SEEMED LIKE THE
`TEXAS REGION. AND SO HE WAS VERY KNOWLEDGEABLE ABOUT THE
`OPERATION OF LYFT'S PRODUCTS, AND AGIS WOULD LIKELY LOOK TO HIM
`FOR INFORMATION, DISCOVERABLE INFORMATION IN THIS CASE. HE'S
`LOCATED IN TEXAS.
`IN TERMS OF THE OTHER WITNESSES THAT MS. SALPIETRA
`MENTIONED, AGAIN, IT SEEMS LIKE ALMOST ALL OF THEM ARE PRIOR
`ART WITNESSES, WHICH IN THE CASE OF A CASE WHERE WE HAVE BOTH
`INVALIDITY AND INFRINGEMENT AT ISSUE BEFORE THE COURT, PERHAPS
`THERE MAY BE SOME RELEVANCE THERE, BUT AS I POINTED OUT IN OUR
`OPENING SESSION HERE, THE CASE AT ISSUE BEFORE YOUR HONOR IS
`ONLY NON-INFRINGEMENT, UNTIL LYFT PUTS IN SOME INVALIDITY
`ARGUMENTS, WHICH BY THE WAY IT SEEMS LIKE IT DIDN'T, PROBABLY
`TO PRESERVE ITS IPR RIGHTS AND TO EVADE THAT RULE AND THAT
`STATUTE THAT WOULD PREVENT IT FROM FILING IPR'S, IF IT AVAILED
`ITSELF OF DECLARATORY JUDGMENT.
`WELL, IT ALSO SHOULDN'T GET THE BENEFIT OF INVALIDITY
`ARGUMENTS FOR PURPOSES OF TRANSFER UNTIL IT FILES THAT CLAIM.
`SO AT ISSUE BEFORE THE COURT IS NON-INFRINGEMENT. NONE OF THE
`WITNESSES THAT MS. SALPIETRA POINTS OUT AS THIRD PARTIES ARE
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`RELEVANT. THE ONLY RELEVANT THIRD PARTY WITNESSES ARE AGIS'S,
`THE ONES AGIS IDENTIFIED, WHICH ARE IN THE EASTERN DISTRICT OF
`TEXAS. AND WHEN THE COURT LOOKS AT THIS ON THE WHOLE, IT
`SHOULD TRANSFER THE CASE.
`THE COURT: WHO CONTROLS MR. LOOSEN? IS HE A LYFT
`EMPLOYEE? I'M A LITTLE UNCLEAR ON WHO HE IS.
`MS. SALPIETRA: YES, YOUR HONOR.
`MR. LOOSEN IS A LYFT EMPLOYEE.
`THE COURT: WE DON'T NEED A SUBPOENA FOR HIM THEN, DO
`
`WE?
`
`MR. RUBINO: YOUR HONOR, I WAS NOT SUGGESTING WE
`NEEDED A SUBPOENA, MERELY THAT THE SOURCES OF PROOF ARE NOT
`EXCLUSIVELY IN CALIFORNIA AS MS. SALPIETRA MENTIONED.
`THE COURT: OKAY. THAT'S HELPFUL. THANK YOU.
`I APPRECIATE THAT. I AM GOING TO THINK ABOUT IT.
`I NEED TO CAREFULLY ADDRESS THE CONCERNS THAT THE FEDERAL
`CIRCUIT HAS OUTLINED IN THE MULTIPLE WRITS OF MANDATE.
`WE HAVE -- MY DISTRICT HAS BEEN THE RECIPIENT OF MANY OF
`THOSE CASES THAT THE FEDERAL CIRCUIT HAS REVIEWED. I WOULD
`HARDLY LIKE ONE OF MY CASES BE SENT BACK TO TEXAS BECAUSE I
`DIDN'T FOLLOW THEM, SO I WILL HAVE TO WORK THROUGH THAT.
`OKAY. LET'S TURN TO THE MOTION TO DISMISS ON PERSONAL
`JURISDICTION. AND ALTHOUGH IT IS AGIS'S MOTION, I JUST WANT TO
`FIRST ASK MR. TAYLOR, IT SEEMED TO ME YOU ARE VIRTUALLY
`CONCEDING IT AT THIS POINT AND WOULD LIKE JURISDICTIONAL
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`DISCOVERY AND A CHANCE TO AMEND THE COMPLAINT; IS THAT CORRECT?
`MR. TAYLOR: YOUR HONOR, I THINK THERE'S ENOUGH IN
`THE COMPLAINT TO MAKE THE DECISION, BUT I ABSOLUTELY AGREE WITH
`YOU, THE EASIEST PATH FORWARD WOULD BE JUST LET US AMEND THE
`COMPLAINT WITH THE ADDITIONAL FACTS THAT WE HAVE LEARNED
`THROUGH THE EASTERN DISTRICT OF TEXAS.
`AND THERE'S A COUPLE AVENUES TO DO THAT. ONE IS REACH
`AGREEMENT WITH AGIS, WHICH WE ARE ATTEMPTING TO DO AND HAVE NOT
`YET DONE, OR YOU CAN ALLOW US TO HAVE SOME JURISDICTIONAL
`DISCOVERY, WE CAN BRING THAT FORMALLY INTO THIS CASE, WE WILL
`AMEND THE COMPLAINT, AND I THINK IT WILL BE VERY CLEAR AT THAT
`POINT WHAT THE DECISION SHOULD BE.
`THE COURT: AND WHO IS ARGUING FOR AGIS ON THIS
`
`MOTION?
`
`MR. RUBINO: YOUR HONOR, THAT'S ME AGAIN.
`THE COURT: OH, YOU GOT EVERYTHING TODAY, MR. RUBINO,
`THAT'S GREAT.
`OKAY. SO I'M NOT PERSUADED THAT THERE'S ENOUGH IN THE
`COMPLAINT YET. I THINK THAT -- AND THIS IS ONLY AGIS SOFTWARE
`WHO IS A PARTY AT THIS TIME, AND NOT AGIS, INC.
`THERE'S SOME SUGGESTION THERE MIGHT AN AMENDMENT, BUT I'M
`NOT CONSIDERING THAT. AND SO ON ALTER EGO, I'M NOT SURE IT'S
`REALLY THERE, BUT I AM INCLINED TO ALLOW JURISDICTIONAL
`DISCOVERY IN A LIMITED WAY. AND IN OUR CASE MANAGEMENT
`CONFERENCE, WE CERTAINLY DISCUSSED THE STATUS OF THOSE TEXAS
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`DOCUMENTS THAT ARE UNDER A PROTECTIVE ORDER.
`SO MR. RUBINO, YOU ARE BASICALLY WINNING ON THIS ONE, BUT
`IT'S ONLY ROUND ONE, AND I'M INCLINED TO ALLOW A ROUND TWO. SO
`LET ME HEAR YOUR ARGUMENT ON THAT.
`MR. RUBINO: YOUR HONOR, I THINK THAT THE ISSUE THAT
`IS NOW BEFORE YOUR HONOR IS WHAT IS ROUND TWO, AND THIS IS
`GOING TO BE A FUTILE AMENDMENT.
`SO LET'S ASSUME FOR A MINUTE THAT AGIS, AND I'M NOT
`CONCEDING THIS, I DON'T THINK THERE IS AN ALTER EGO, I DON'T
`THINK THEY ARE GOING TO PREVAIL ON THAT. BUT EVEN ASSUMING
`THAT ALTER EGO CAME IN, WE DON'T UNDERSTAND WHY THAT MEANS THAT
`THERE'S PERSONAL JURISDICTION IN THIS CASE, THAT LYFT JUST
`SIMPLY CAN'T PROVE THAT.
`AND SO IN OTHER WORDS, THE PERSONAL JURISDICTION FACTORS
`FOR AGIS, INC., TO THE EXTENT THAT THERE WAS SOME BUSINESS THEY
`CAN POINT TO OR SOMETHING THEY CAN POINT TO WITH CONTACT TO
`CALIFORNIA, THERE IS NOTHING AGIS, INC. DID WITH LYFT IN
`CALIFORNIA. THEY DIDN'T SEND ANY LETTERS TO LYFT, THEY DIDN'T
`HAVE ANY COMMUNICATION WITH LYFT, THEY DIDN'T CONDUCT ANY
`SETTLEMENT DISCUSSIONS WITH LYFT. AGIS, INC. SIMPLY HASN'T
`FILED ANY CASES IN CALIFORNIA, IT'S NOT LIKE THAT WOULD GET
`THEM THERE.
`AND SO IT SEEMS LYFT IS POINTING TO THIS EARLIER CASE,
`THIS LIFE360 CASE, WHICH YOUR HONOR MAY BE FAMILIAR WITH.
`THE COURT: MAYBE.
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`MR. RUBINO: AND YOUR HONOR, I HAVE READ THAT
`DECISION, AND I CAN TELL YOU THAT I WAS THERE BACK AT THE TIME
`THAT DECISION CAME OUT ORIGINALLY, AND I CAN TELL YOU THAT THAT
`CASE HAD TO DO WITH -- IT DIDN'T HAVE TO DO WITH PATENT
`INFRINGEMENT. IT HAD TO DO WITH TWO COMPETING PRODUCTS, AND
`THERE WAS SOME ALLEGED HARM TO A COMPETING PRODUCT.
`AGIS SOFTWARE NOR AGIS, INC. HAS EVER ALLEGED THAT THERE
`ARE ANY COMPETING PRODUCTS HERE WITH LYFT. THERE'S NO HARM TO
`LYFT IN THIS DISTRICT. SO THAT AMENDMENT WOULD HAVE TO BE
`FUTILE, EVEN IF AGIS, INC. WERE TO BE AN ALTER EGO.
`BECAUSE WHAT IT SEEMS LIKE WHAT LYFT IS SAYING IS THAT THE
`ONLY REASON -- THE THING IT THINKS IS ITS SILVER BULLET IS THAT
`BECAUSE THIS COURT FOUND PERSONAL JURISDICTION, SPECIFIC
`PERSONAL JURISDICTION FOR THAT LIFE360 CASE, AUTOMATICALLY
`PERSONAL JURISDICTION HERE.
`BUT YOUR HONOR, THAT'S JUST NOT THE CASE AND THEY HAVEN'T
`SET FORTH ANY BASIS FOR THAT WHY WOULD BE THE CASE.
`AND FOR THAT REASON, THE MOTION WOULD BE FUTILE AND THE
`CASE WOULD BE DISMISSED.
`THE COURT: SO WE WOULD BEING TALKING ABOUT
`ENFORCEMENT OF THE PATENTS THOUGH. AND I THINK MR. TAYLOR'S
`ARGUMENT IS BROADER THAN CONDUCT INVOLVING -- LOOKING AT THESE
`PATENTS, I MEAN, AND THE ENFORCEMENT OF THEM. MR. TAYLOR
`SUGGESTS THERE HAVE BEEN OTHER CASES WITH AGIS SOFTWARE HAS
`TRIED TO ENFORCE THESE PATENTS, OR AGIS, INC., OF COURSE I WILL
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`LET HIM MAKE HIS ARGUMENT.
`BUT ON THE ISSUE OF WHETHER IT'S FUTILE, THAT'S A -- IT'S
`A PRETTY RARE FINDING THAT I WOULD MAKE, ESPECIALLY WITH
`SOPHISTICATED PARTIES AND A DESIRE TO AMEND. IT'S ONLY THE
`FIRST TIME I HAVE LOOKED AT IT.
`SO I'M NOT SAYING -- I MEAN, YOU ARE WINNING THIS TIME,
`I'M NOT SAYING YOU WOULDN'T WIN NEXT TIME, BUT I THINK -- I'M
`NOT PREPARED TO JUMP OUT THERE AND PREJUDGE THE POTENTIAL
`EVIDENCE THAT WILL BE SUBMITTED.
`YOU KNOW, I WOULD TEND TO AGREE WITH YOU THAT THE
`CIRCUMSTANCES IN THE OTHER CASE MAY NOT HAVE AS MUCH IMPACT. I
`DON'T THINK IT'S -- BUT AGIS SOFTWARE IS NOT A PARTY TO THE
`LIFE360 CASE. SO, YOU KNOW, WE'VE GOT A FEW MORE DOTS TO
`CONNECT BEFORE WE EVEN GET TO THAT.
`MR. RUBINO: THANK YOU, YOUR HONOR.
`THE COURT: OKAY. MR. TAYLOR, LET ME HEAR YOUR
`
`ARGUMENT.
`
`MR. TAYLOR: I THINK ONE -- THE PLACE TO START HERE
`IS WITH THE ZTE V. AGIS CASE. AND WHEN I READ THROUGH --
`THE COURT: OH, DID I FREEZE?
`MR. TAYLOR: OH, CAN YOU HEAR ME?
`THE COURT: I LOST YOU JUST THERE. I THINK MY
`COMPUTER FROZE, AND SINCE I'M -- MY COMPUTER IS HARD WIRED, SO
`THAT'S WEIRD. SO I'VE LOST YOU AGAIN.
`MR. TAYLOR: CAN YOU HEAR ME?
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`THE COURT: I'M NOT -- MINE IS CUTTING IN AND OUT.
`THE CLERK: I WILL HAVE TO NOTIFY JACKSON,
`YOUR HONOR.
`IT HASN'T BEEN CUTTING IN AND OUT ON MY END AT ALL, SO I
`DO THINK IT IS YOUR CONNECTION.
`THE COURT: BUT YOU CAN HEAR ME?
`THE CLERK: YES.
`MR. TAYLOR: YOUR HONOR, I DON'T KNOW IF YOU CAN HEAR
`ME, BUT WE HAVE HEARD YOU THE WHOLE TIME AS WELL.
`THE COURT: OKAY. WELL, THAT'S WEIRD.
`MR. TAYLOR, LET'S KEEP GOING AND SEE WHAT'S HAPPENING. I
`HAVEN'T GOTTEN A NOTICE THAT I HAVE A LOW CONNECTION. WE WILL
`DO THE BEST THAT WE CAN.
`MR. TAYLOR: CAN YOU STILL HEAR ME?
`THE COURT: I CAN.
`MR. TAYLOR: OKAY. WELL, LET'S PROCEED AND HOPEFULLY
`THIS WORKS OUT. FINGERS CROSSED.
`THE COURT: OKAY. IF I THINK I'VE LOST YOU -- WELL,
`I DON'T KNOW WHAT TO DO, I'M NOT SURE YOU WILL SEE ME, BUT I
`WILL WAVE MY HAND OR SOMETHING TO LET YOU KNOW I'M NOT HEARING
`YOU.
`
`MR. TAYLOR: I APPRECIATE IT, YOUR HONOR.
`LIKE I WAS SAYING, I THINK THE SPOT TO START HERE IS LOOK
`AT THE ZTE V. AGIS CASE. THE FAC
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