Case 5:21-cv-03076-BLF Document 1 Filed 04/27/21 Page 1 of 10
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`LISA K. NGUYEN, Bar No. 244280
`lisa.nguyen@lw.com
`RICHARD G. FRENKEL, Bar No. 204133
`rick.frenkel@lw.com
`CLARA WANG, Bar No. 321496
`clara.wang@lw.com
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 94025
`Telephone:
`(650) 328-4600
`Facsimile:
`(650) 463-2600
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`TIFFANY C. WESTON (pro hac vice pending)
`tiffany.weston@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`Telephone:
`(202) 637-2200
`Facsimile:
`(202) 637-2201
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`Attorneys for Plaintiff
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`WHATSAPP LLC,
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`Plaintiff,
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`Case No.
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`v.
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`COMPLAINT FOR DECLARATORY
`JUDGMENT
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`JURY TRIAL DEMANDED
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`Defendant.
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`Plaintiff WhatsApp LLC (“WhatsApp”) hereby pleads the following claims for
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`Declaratory Judgment against Defendant AGIS Software Development LLC (“AGIS Software”),
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`and alleges as follows:
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`THE PARTIES
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`1.
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`WhatsApp is a Delaware limited liability corporation with its principal place of
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`business located in Menlo Park, California.
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`A T T O R N E Y S A T L A W
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`S I L I C O N V A L L E Y
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`COMPLAINT FOR
`DECLARATORY JUDGMENT
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`Case 5:21-cv-03076-BLF Document 1 Filed 04/27/21 Page 2 of 10
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`2.
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`On information and belief, AGIS Software is an agent and alter ego of Advanced
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`Ground Information Systems, Inc. Per AGIS Software’s allegations in another litigation between
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`the parties, AGIS Software is a Texas limited liability company, having its principal place of
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`business at 100 W. Houston Street, Marshall, Texas 75670. According to Texas public records,
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`the sole member of AGIS Software is AGIS Holdings, Inc. (“AGIS Holdings”). According to
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`Florida public records, AGIS Holdings is organized and existing under the laws of the State of
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`Florida, and maintains its principal place of business at 92 Lighthouse Drive, Jupiter, FL 33469.
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`It shares the same address with Advanced Ground Information Systems, Inc., (“AGIS”) a
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`corporation organized and existing under the laws of the State of Florida that also maintains its
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`principal place of business at 92 Lighthouse Drive, Jupiter, FL 33469.
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`JURISDICTION AND VENUE
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`3.
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`The Court has subject matter jurisdiction over WhatsApp’s declaratory judgment
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`claims relating to patent non-infringement under 28 U.S.C. §§ 1331, 1338(a), 2201, and 2202.
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`4.
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`On January 29, 2021, AGIS Software sued WhatsApp for infringing United States
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`Patent Nos. 7,031,728 (“’728 patent”), 7,630,724 (“’724 patent”), 9,408,055 (“’055 patent”),
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`9,445,251 (“’251 patent”), 9,467,838 (“’838 patent”), and 9,749,829 (“’829 patent”) (collectively,
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`“Patents-in-Suit”) in the United States District Court of the Eastern District of Texas by
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`manufacturing, using, distributing, selling, offering for sale, and/or exporting from and importing
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`into the United States the “WhatsApp and WhatsApp Messenger Applications and the related
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`services and/or servers for the applications.” See Compl. ¶ 16, AGIS Software Development LLC
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`v. WhatsApp, Inc., 2:21-cv-00029 (E.D. Tex. Jan. 29, 2021), Dkt. 1. AGIS Software purported to
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`be the owner of all right, title, and interest in the Patents-in-Suit. Id. ¶ 1. Contemporaneously with
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`the filing of this declaratory judgment action, WhatsApp has moved to dismiss the Eastern District
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`of Texas litigation for improper venue.
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`5.
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`WhatsApp denies that the Patents-in-Suit are infringed through the making, using,
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`distributing, sale, offering for sale, exportation, or importation of WhatsApp Messenger or any
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`other WhatsApp product or service. Under all circumstances, AGIS Software’s infringement
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`allegations and related actions threaten actual and imminent injury to WhatsApp that can be
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`COMPLAINT FOR
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`Case 5:21-cv-03076-BLF Document 1 Filed 04/27/21 Page 3 of 10
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`redressed by judicial relief and warrants the issue of a declaratory judgment. An actual and
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`justiciable controversy exists between WhatsApp and AGIS Software with respect to the Patents-
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`in-Suit.
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`6.
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`On information and belief, AGIS Software is subject to this Court’s specific
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`jurisdiction, pursuant to due process and/or the California Long Arm Statute due to: (1) AGIS
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`Software and/or AGIS’s activities purposefully directed at residents of this forum, and (2) the
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`claims arising out of or relating to AGIS Software and/or AGIS’s activities with this forum.
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`Further, the assertion of personal jurisdictions is reasonable and fair.
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`7.
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`On information and belief, AGIS Software and/or AGIS have taken intentional and
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`purposeful steps to enforce the Patents-in-Suit against residents of this judicial district, including
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`by suing WhatsApp and other companies with principal places of business or operations in this
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`judicial district for infringement of the Patents-in-Suit.
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`8.
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`Based on Public Access to Court Electronic Records (“PACER”), on June 21, 2017,
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`AGIS Software sued Apple Inc. (“Apple”), a California corporation with its principal place of
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`business at One Apple Park Way, Cupertino, California 95014, alleging infringement of patents
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`including the ’055 patent, ’251 patent, ’838 patent, and ’829 patent. See AGIS Software
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`Development LLC v. Apple Inc., 2:17-cv-00516 (E.D. Tex.). Based on U.S. Patent & Trademark
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`Office (“USPTO”) records, on July 31, 2018, Apple filed a petition for inter partes review of the
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`’829 patent (IPR2018-01471). Based on USPTO records, on December 13, 2018, Apple filed a
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`petition for inter partes review of the ’055 patent (IPR2019-00432). Based on USPTO records,
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`on January 3, 2019, Apple filed petitions for inter partes review of the ’251 patent (IPR2019-
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`00523, IPR2019-00524). Based on USPTO records, on or around April 2, 2019, each of these
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`inter partes review proceedings were terminated as a result of the Apple and AGIS Software
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`reaching a settlement agreement. See, e.g., Decision Granting Joint Motion to Terminate and
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`Granting Request to Treat Settlement Document as Confidential Business Information, IPR2018-
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`01471, Paper No. 15. Based on PACER, on March 14, 2019, the Eastern District of Texas
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`dismissed the district court litigation between AGIS Software and Apple as a result of settlement.
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`Case 5:21-cv-03076-BLF Document 1 Filed 04/27/21 Page 4 of 10
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`Order, AGIS Software Development LLC v. Apple Inc ., 2:17-cv-00516 (E.D. Tex. Mar. 14, 2019),
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`Dkt. 87.
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`9.
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`Based on PACER, on June 21, 2017, AGIS Software sued ZTE Corporation and
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`ZTE (TX) Inc. alleging infringement of patents, including the ’055 patent, ’251 patent, ’838 patent,
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`and ’829 patent. AGIS Software Development LLC v. ZTE Corporation, 2:17-v-00517 (E.D. Tex.).
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`Based on PACER, on October 17, 2017, AGIS Software filed an amended complaint, adding ZTE
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`(USA) Inc. to this litigation. On information and belief, ZTE (USA) Inc. has an office located at
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`1900 McCarthy Boulevard, Milpitas, California 95035. On information and belief, ZTE (TX) Inc.
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`keeps its principal place of business at 1900 McCarthy Boulevard, Milpitas, CA 95035.
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`10.
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`Based on PACER, on October 9, 2018, ZTE (USA) Inc. filed a declaratory
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`judgment action in the Northern District of California. Based on PACER, on October 30, 2019,
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`AGIS Software and ZTE (USA) Inc. filed a joint motion to stay all deadlines as a result of a
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`settlement in principle. ZTE (USA) Inc. v. AGIS Software Development LLC, No. 4:18-cv-06185-
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`HSG (N.D. Cal. Oct. 30, 2019), Dkt. 130. Based on PACER, less than a week later, on November
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`4, 2019, AGIS Software filed an unopposed renewed motion to dismiss. Id., Dkt. 135. Based on
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`PACER, on November 5, 2019, the Court granted the motion. Id., Dkt. 138.
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`11.
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`On information and belief, AGIS Software has entered into agreements relating to
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`the Patents-in-Suit with Apple and ZTE Corporation, ZTE (USA) Inc., and ZTE (TX) Inc.
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`(“ZTE”).
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`12.
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`On information and belief, AGIS Holdings registered AGIS Software in Texas on
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`June 1, 2017, 20 days before filing the above patent infringement cases against Apple and ZTE.
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`13.
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`On information and belief, only two months prior to the registration of AGIS
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`Software, AGIS was litigating in the Southern District of Florida against Life360, Inc., a company
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`headquartered in San Francisco, California. Advanced Ground Information Sys., Inc. v. Life360,
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`Inc., 9:14-cv-80651 (S.D. Fla.). Based on PACER, AGIS asserted that Life360 infringed the ’728
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`patent (one of the Patents-in-Suit) and other related patents. Based on PACER, AGIS’s claims
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`against Life360 resulted in a jury finding of no-infringement and an award of nearly $750,000 in
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`attorneys’ fees for litigating “an exceptionally weak case.” Id., Dkt. 200, 212.
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`COMPLAINT FOR
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`Case 5:21-cv-03076-BLF Document 1 Filed 04/27/21 Page 5 of 10
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`14.
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` On information and belief, AGIS Software is an alter ego to AGIS Holdings and/or
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`AGIS.
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`15.
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`On information and belief, AGIS has also committed a number of intentional acts
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`directed at the State of California.
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`16.
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`On information and belief, AGIS has marketed and/or provided downloads of its
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`LifeRing product, which AGIS Software contends is covered by the Patents-in-Suit, in California.
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`17.
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`On information and belief, in 2014, Mr. Malcom Beyer, CEO of both AGIS
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`Software and AGIS, attended a U.S. Navy military exercise in San Diego where he demonstrated
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`LifeRing on PCs and smartphones when asked to do so. See Life360, Inc. v. Advanced Ground
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`Sys., Inc., 2014 WL 5612008, at *3, Case No. 15-cv-00151-BLF (N.D. Cal. Sept. 21, 2015). On
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`information and belief, during this demonstration, Mr. Beyer also discussed LifeRing with
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`companies including ADI Technology and Maven Consulting. Id.
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`18.
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`On information and belief, AGIS marketed LifeRing to companies that resulted in
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`downloads of LifeRing in California. Id. at *4. On information and belief, AGIS marketed
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`LifeRing to at least CornerTurn LLC, Integrity Applications, and American Reliance, Inc., which
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`AGIS has stated have California addresses. Id.
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`19.
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`On information and belief, AGIS has marked LifeRing as covered by the Patents-
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`in-Suit. See, e.g., AGIS Website | Patents, http://agisinc.com/about/patents (last visited April 27,
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`2021). On information and belief, AGIS Software has licensed the patents to end users residing
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`in California who downloaded the LifeRing software.
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`20.
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`On information and belief, AGIS also formed a “strategic partnership” with Green
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`Hills Software, Inc., a California company and security software firm located in Santa Barbara,
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`California. See Life360, 2014 WL 5612008, at *4.
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`21.
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`As a result of the foregoing allegations, AGIS Software either individually or as an
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`alter ego of AGIS, is subject to personal jurisdiction within this judicial district.
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`22.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 in that a
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`substantial part of the acts giving rise to the claim occurred in this judicial district, and because
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`AGIS Software is subject to personal jurisdiction in this district.
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`Case 5:21-cv-03076-BLF Document 1 Filed 04/27/21 Page 6 of 10
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`COUNT I
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`Declaratory Relief Regarding Non-Infringement of U.S. Patent No. 7,031,728
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`23. WhatsApp restates and incorporates by reference each of the allegations set forth
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`in paragraphs 1-22 above, as if fully set forth herein.
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`24.
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`On information and belief, AGIS Software is the owner of all right, title, and
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`interest in the ’728 patent, including the right to assert all causes of action arising under that patent
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`and the right to any remedies for infringement of it. A copy of the ’728 patent is attached hereto
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`as Exhibit A.
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`25. WhatsApp does not infringe any claim of the ’728 patent, directly or indirectly,
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`contributorily or otherwise through its or its user’s activities in conjunction with WhatsApp
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`Messenger or any other WhatsApp product.
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`26.
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`As set forth above, an actual and justiciable controversy exists between WhatsApp
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`and AGIS Software as to WhatsApp’s non-infringement of the ’728 patent.
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`27.
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`Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.,
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`WhatsApp requests that this Court enter a judgment that WhatsApp does not infringe, under any
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`theory of infringement, any valid claim of the ’728 patent.
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`COUNT II
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`Declaratory Relief Regarding Non-Infringement of U.S. Patent No. 7,630,724
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`28. WhatsApp restates and incorporates by reference each of the allegations set forth
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`in paragraphs 1-22 above, as if fully set forth herein.
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`29.
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`On information and belief, AGIS Software is the owner of all right, title, and
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`interest in the ’724 patent, including the right to assert all causes of action arising under that patent
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`and the right to any remedies for infringement of it. A copy of the ’724 patent is attached hereto
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`as Exhibit B.
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`30. WhatsApp does not infringe any claim of the ’724 patent, directly or indirectly,
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`contributorily or otherwise through its or its user’s activities in conjunction with WhatsApp
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`Messenger or any other WhatsApp product.
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`COMPLAINT FOR
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`Case 5:21-cv-03076-BLF Document 1 Filed 04/27/21 Page 7 of 10
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`31.
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`As set forth above, an actual and justiciable controversy exists between WhatsApp
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`and AGIS Software as to WhatsApp’s non-infringement of the ’724 patent.
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`32.
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`Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.,
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`WhatsApp requests that this Court enter a judgment that WhatsApp does not infringe, under any
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`theory of infringement, any valid claim of the ’724 patent.
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`COUNT III
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`Declaratory Relief Regarding Non-Infringement of U.S. Patent No. 9,408,055
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`33. WhatsApp restates and incorporates by reference each of the allegations set forth
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`in paragraphs 1-22 above, as if fully set forth herein.
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`34.
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`On information and belief, AGIS Software is the owner of all right, title, and
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`interest in the ’055 patent, including the right to assert all causes of action arising under that patent
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`and the right to any remedies for infringement of it. A copy of the ’055 patent is attached hereto
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`as Exhibit C.
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`35. WhatsApp does not infringe any claim of the ’055 patent, directly or indirectly,
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`contributorily or otherwise through its or its user’s activities in conjunction with WhatsApp
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`Messenger or any other WhatsApp product.
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`36.
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`As set forth above, an actual and justiciable controversy exists between WhatsApp
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`and AGIS Software as to WhatsApp’s non-infringement of the ’055 patent.
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`37.
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`Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.,
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`WhatsApp requests that this Court enter a judgment that WhatsApp does not infringe, under any
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`theory of infringement, any valid claim of the ’055 patent.
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`COUNT IV
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`Declaratory Relief Regarding Non-Infringement of U.S. Patent No. 9,445,251
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`38. WhatsApp restates and incorporates by reference each of the allegations set forth
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`in paragraphs 1-22 above, as if fully set forth herein.
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`39.
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`On information and belief, AGIS Software is the owner of all right, title, and
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`interest in the ’251 patent, including the right to assert all causes of action arising under that patent
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`COMPLAINT FOR
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`Case 5:21-cv-03076-BLF Document 1 Filed 04/27/21 Page 8 of 10
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`and the right to any remedies for infringement of it. A copy of the ’251 patent is attached hereto
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`as Exhibit D.
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`40. WhatsApp does not infringe any claim of the ’251 patent, directly or indirectly,
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`contributorily or otherwise through its or its user’s activities in conjunction with WhatsApp
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`Messenger or any other WhatsApp product.
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`41.
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`As set forth above, an actual and justiciable controversy exists between WhatsApp
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`and AGIS Software as to WhatsApp’s non-infringement of the ’251 patent.
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`42.
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`Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.,
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`WhatsApp requests that this Court enter a judgment that WhatsApp does not infringe, under any
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`theory of infringement, any valid claim of the ’251 patent.
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`COUNT V
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`Declaratory Relief Regarding Non-Infringement of U.S. Patent No. 9,467,838
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`43. WhatsApp restates and incorporates by reference each of the allegations set forth
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`in paragraphs 1-22 above, as if fully set forth herein.
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`44.
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`On information and belief, AGIS Software is the owner of all right, title, and
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`interest in the ’838 patent, including the right to assert all causes of action arising under that patent
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`and the right to any remedies for infringement of it. A copy of the ’838 patent is attached hereto
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`as Exhibit E.
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`45. WhatsApp does not infringe any claim of the ’838 patent, directly or indirectly,
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`contributorily or otherwise through its or its user’s activities in conjunction with WhatsApp
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`Messenger or any other WhatsApp product.
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`46.
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`As set forth above, an actual and justiciable controversy exists between WhatsApp
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`and AGIS Software as to WhatsApp’s non-infringement of the ’838 patent.
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`47.
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`Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.,
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`WhatsApp requests that this Court enter a judgment that WhatsApp does not infringe, under any
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`theory of infringement, any valid claim of the ’838 patent.
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`COMPLAINT FOR
`DECLARATORY JUDGMENT
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`Case 5:21-cv-03076-BLF Document 1 Filed 04/27/21 Page 9 of 10
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`COUNT VI
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`Declaratory Relief Regarding Non-Infringement of U.S. Patent No. 9,749,829
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`48. WhatsApp restates and incorporates by reference each of the allegations set forth
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`in paragraphs 1-22 above, as if fully set forth herein.
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`49.
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`On information and belief, AGIS Software is the owner of all right, title, and
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`interest in the ’829 patent, including the right to assert all causes of action arising under that patent
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`and the right to any remedies for infringement of it. A copy of the ’829 patent is attached hereto
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`as Exhibit F.
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`50. WhatsApp does not infringe any claim of the ’829 patent, directly or indirectly,
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`contributorily or otherwise through its or its user’s activities in conjunction with WhatsApp
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`Messenger or any other WhatsApp product.
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`51.
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`As set forth above, an actual and justiciable controversy exists between WhatsApp
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`and AGIS Software as to WhatsApp’s non-infringement of the ’829 patent.
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`52.
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`Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.,
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`WhatsApp requests that this Court enter a judgment that WhatsApp does not infringe, under any
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`theory of infringement, any valid claim of the ’829 patent.
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`PRAYER FOR RELIEF
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`WHEREFORE, WhatsApp respectfully prays for judgment in favor of WhatsApp and
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`against AGIS Software, as follows:
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`1.
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`For a judicial determination and declaration that WhatsApp has not infringed and
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`is not infringing, directly or indirectly, any claim of the Patents-in-Suit;
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`2.
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`For injunctive relief against AGIS Software, and all persons acting on its behalf or
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`in concert with it, restraining them from further prosecuting or instituting any action against
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`WhatsApp or WhatsApp’s users claiming the Patents-in-Suit are infringed, or for representing that
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`WhatsApp’s products or services, or that others’ use thereof, infringe the Patents-in-Suit;
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`3.
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`For a declaration that this case is exceptional under 35 U.S.C. § 285 and for an
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`award of attorneys’ fees and costs in this action; and
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`4.
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`For such other and further relief as this Court may deem just and proper.
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`COMPLAINT FOR
`DECLARATORY JUDGMENT
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`Case 5:21-cv-03076-BLF Document 1 Filed 04/27/21 Page 10 of 10
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`DEMAND FOR JURY TRIAL
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`WhatsApp respectfully demands a jury trial in this action on all issues so triable.
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`Dated: April 27, 2021
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`LATHAM & WATKINS, LLP
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`By: /s/ Lisa K. Nguyen
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`LISA K. NGUYEN, Bar No. 244280
`lisa.nguyen@lw.com
`RICHARD G. FRENKEL, Bar No. 204133
`rick.frenkel@lw.com
`CLARA WANG, Bar No. 321496
`clara.wang@lw.com
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 94025
`Telephone:
`(650) 328-4600
`Facsimile:
`(650) 463-2600
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`TIFFANY C. WESTON
`(pro hac vice pending)
`tiffany.weston@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`Telephone:
`(202) 637-2200
`Facsimile:
`(202) 637-2201
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`Attorneys for Plaintiff
`WHATSAPP LLC
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`10
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`COMPLAINT FOR
`DECLARATORY JUDGMENT
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