Case 5:21-cv-03677-BLF Document 34-4 Filed 09/20/21 Page 1 of 9
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`Case 2:21-cv-00072-JRG-RSP Document 82-2 Filed 06/08/21 Page 1 of 8 PageID #: 2047Case 5:21-cv-03677-BLF Document 34-4 Filed 09/20/21 Page 2 of 9
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`EXHIBIT A
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`Case 2:21-cv-00072-JRG-RSP Document 82-2 Filed 06/08/21 Page 2 of 8 PageID #: 2048Case 5:21-cv-03677-BLF Document 34-4 Filed 09/20/21 Page 3 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:21-cv-00072-JRG
`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`Case No. 2:21-cv-00029-JRG
`(CONSOLIDATED CASE)
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`JURY TRIAL DEMANDED
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`V.
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`T-MOBILE USA, INC. and T-MOBILE US,
`INC.,
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`Defendants.
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`V.
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`WHATSAPP, INC.,
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`Plaintiff,
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`Defendant.
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`DECLARATION OF MALCOLM K. BEYER, JR.
`IN OPPOSITION TO DEFENDANT WHATSAPP, INC'S MOTION TO
`DISMISS FOR IMPROPER VENUE
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`I, Malcolm K. Beyer, Jr., hereby declare as follows:
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`1.
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`I am the Chief Executive Officer ("CEO") of Plaintiff AGIS Software
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`Development LLC ("AGIS"). I am also the first-named inventor on U.S. Patent Nos. 7,031,728;
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`7.630, 724; 9,408,055; 9,445,251; 9,467,838; and 9,749,829 (the "Patents-in-Suit"). I submit this
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`declaration based on my personal knowledge and in support of AGIS's Opposition to Defendant
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`\X/hatsApp, Inc.'s ("WhatsApp") Motion to Dismiss for Improper Venue.
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`Background
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`2.
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`I graduated from the U.S. Naval Academy in 1962 and was commissioned as a
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`Second Lieutenant in the U.S. Marine Corps. I later attended the U.S. Navy's programming
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`school and wasthe lead programmerfor the first automated Marine Corps Tactical Operations
`Center Link-11 Navy Interface. After leaving active service, I worked at a numberofwell-
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`known technology companies, including System Development Corporation (consideredthe
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`world’s first computer software company)and Litton Industries. I then started several businesses
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`which provided technology and engineering solutions supporting defense and military
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`customers.
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`ae
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`In 1987, I co-founded Advanced Programming Concepts, Inc. (“APC”),
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`a Texas
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`corporation based in Austin, Texas. APC operated primarily
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`out of its main business location in
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`Austin, Texas. APC specialized in designing, building, and supporting systemsfor enabling
`integration and sharing time-critical information across dissimilar military and defense
`applications. At APC, I was the majority shareholder and Chairman until we sold the business to
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`Ultra Electronics in July 1999.
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`4.
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`On June 30, 2004, I founded Advanced Ground Information Systems,Inc.
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`a Florida corporation. AGIS Inc.’s main business location is located at 92
`(“AGIS Inc.”),
`Lighthouse Drive, Jupiter, Florida. AGIS Inc. also maintains businesslocations in Austin, TX
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`and Kansas City, KS. AGIS Inc. employs approximately
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`15
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`people.
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`a
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`As the CEO of AGIS and AGIS Inc. andfirst-named inventorof the Patents-in-
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`Suit, I will be one of AGIS’s primary witnesses because I have knowledgeof the businesses and
`practice of the Patents-in-Suit. I live and workin Jupiter, Florida.
`andreduction to
`a
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`In 2013, AGIS Inc. began
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`corporate restructuring plan for business growth
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`the conception
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`6.
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`purposes. By 2017, AGIS Inc.’s board of directors approved the restructuring plan which
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`resulted in the formation of a
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`parent corporation, AGIS Holdings, Inc. (“AGIS Holdings”),
`Florida corporation. AGIS Holdings consists of two subsidiaries, AGIS Inc. and AGIS, a limited
`separate corporate entity. AGIS was
`liability company organized under Texaslaw. Eachis a
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`a
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`established in Texas because of my previous successful business operations
`because of my longstanding personal connections to Texas, which I describe in more detail
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`in Texas and
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`below. AGIS has an office and a data center in Marshall, Texas.
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`a
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`AGIS holds assignment
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`to each of the Patents-in-Suit and licensesits patent
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`portfolio, including the Patents-in-Suit to AGIS Inc. The two entities, AGIS and AGIS Inc.
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`maintain separate corporate formalities.
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`AGIS’s Witnesses and Other Sources of Proof are in or Closer
`to This District Than to the Northern District of California
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`8.
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`AGIS is a limited liability company organized and existing underthe lawsof the
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`State of Texas. AGIS maintainsan office andits principal place
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`of business at 100 W. Houston
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`Street, Marshall, Texas 75670. The lease on AGIS’s Marshall office has run from June 1, 2017
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`and continues to present. AGIS’s documentsare maintained at this location, including patents,
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`files histories, assignmentrecords, prosecution records, formation documents, licenses,
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`agreements, and corporate records. AGISInc. also conducts business and maintains documents
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`and records at AGIS’s Marshall office.
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`9.
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`AGIS hasa data center located at 1005 Stuart Lane, Marshall, Texas 75672. The
`Marshall data center hosts servers, code, applications, and services necessary to run
`for AGIS Inc.’s LifeRing and ASSIST products and solutions. The Marshall data center is used
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`operations
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`to store code, documents,and other data related to AGIS Inc.’s LifeRing and ASSIST products
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`and solutions. The Marshall data center is used for research and developmentprojects.
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`AGIS Inc.
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`invoices AGIS on a
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`regular basis for AGIS Inc.’s provision of personnel and services related to
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`the use, maintenance, and operation of the Marshall data center and for labor, travel expenses,
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`and other expensesrelated to work performed
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`at the Marshall data center.
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`10.
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`AGIS Inc. also maintains a businesslocation in
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`Jupiter, Florida, at whichit
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`employs several software developers.
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`Documents relevantto this action are located at AGIS’s
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`Marshall office, AGIS’s Marshall data center, and AGISInc.’s Jupiter office.
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`11.
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`For over 15 years, AGIS Inc.’s
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`primary business has revolved around offering the
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`and solutions which include client-based applications
`“LifeRing” products
`solutions for, generally, enabling smartphone,tablet, and PC usersto
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`easily and rapidly establish
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`and a server-based
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`secure ad hoc digital networks. LifeRing 5.0 and its predecessor versions have been offered and
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`sold to
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`addition to
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`and response system connecting employees
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`military, defense, and first-responder customers, as well as
`private industry
`LifeRing, AGIS Inc. offers the “ASSIST” solution which is an emergency broadcast
`to a company commandcenter and a network of
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`customers. In
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`responders through personal smartphones.
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`Technical documents and code relevant to
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`LifeRing
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`and ASSIST products and solutionsare located in or accessible from Marshall, Texas.
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`i!
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`12.
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`The research, development, design, testing, manufacture, marketing,
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`contract
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`procurement,
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`andsalesactivities for the LifeRing and ASSIST solutions have occurred in
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`Florida, Kansas, and Texas. Thus, AGIS and AGIS Inc.’s documentsrelevantto this action and
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`such activities are located at these locations.
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`13.
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`For example, since 2010, Eric Armstrong has worked as a programmer and
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`software developer for AGIS Inc. Since 2017, Mr. Armstrong has lived and worked in Allen,
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`Texas, a
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`city within Collin County and within the Eastern District of Texas. Prior to
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`moving
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`to
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`Allen, Mr. Armstrong worked from AGISInc. business locations in Kansas and Missouri. Until
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`approximately 2014, Mr. Armstrong
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`was an
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`employee of AGIS Inc. at which point
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`he chose to
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`convert his working relationship
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`to that of consultant to AGIS Inc.
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`14.
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`Mr. Armstrong has played, and continuesto
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`play,
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`a crucial role in developing
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`software for AGIS Inc. Mr. Armstrong
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`is intimately involved in AGIS Inc.’s marketing
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`andsales
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`efforts for the
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`LifeRing
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`and ASSIST products and solutions. Mr. Armstrong possesses
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`knowledge aboutthe inventions covered by the Patents-in-Suit that will be relevant to this action.
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`Mr. Armstrong
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`is responsible for developing
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`a substantial portion of the software includedin the
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`LifeRing and ASSISTsolutions. Mr. Armstrong
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`is also responsible for designing and developing
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`client-side and server-side software for the
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`LifeRing and ASSIST solutions. Mr. Armstrong
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`works underthe direct control and supervision of AGIS Inc.
`employees such as Rebecca Clark on software development and
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`employee Sandel Blackwell and
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`works with other AGIS Inc.
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`quality
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`assurance. Mr. Armstrong is expected
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`to have documents and e-mails relevant to this
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`actionin his office in this District including technical, marketing, and sales documentsfor the
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`LifeRing and ASSISTproducts
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`and
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`solutions, including documents relevant to the development,
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`testing, maintenance, operating, servicing, and upgrading
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`of the LifeRing and ASSISTproducts
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`and solutions which are stored on his computerin Allen, Texas.
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`15.
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`David Sietsema has been employed by AGIS Inc. since October 2005. He works
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`at AGIS Inc.’s Austin, Texas business location. Mr. Sietsema’s responsibilities include ensuring
`compliance with policies and procedures related to governmentcontracts, as well as
`and overseeing licensing activities including those of AGIS Inc. andits related entities including
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`monitoring
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`AGIS. Mr. Sietsemais also
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`responsible for ensuring compliance
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`with special
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`rules and
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`contractual clauses with respect to intellectual property and patent rights, ensuring maintenance
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`of intellectual property and patentrights, e.g., during the federal procurementprocess, and
`or march-in rights.
`evaluating any potential licensing issues such as governmentuse
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`rights
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`16.
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`Sandel Blackwell is the President and a Director at AGIS Inc. and the President of
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`AGIS. Mr. Blackwell is responsible for managing the development
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`ofthe software included in
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`the LifeRing and ASSISTsolutions. Mr. Blackwell maintains regular communication with AGIS
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`Inc.’s programmers and software developers in Florida, Kansas, and Texas. Mr. Blackwell
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`manages Mr. Armstrong and regularly communicates with Mr. Armstrongin this District. Mr.
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`Blackwell has strong personalties to Texas and
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`routinely travels to Texas. Mr. Blackwell travels
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`to the Eastern District of Texas to
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`perform work in the Marshall datacenter.
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`17.
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`The Eastern District of Texas is a more convenient forum than the Northern
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`District of California for other third-party AGIS Inc. employees
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`and consultants who possess
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`knowledgerelevant to this action. Rebecca Clark has been employed by AGIS Inc. since 2012,
`and she currently works in Kansas City, Kansas. Ms. Clark is a
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`graduate of Texas A&M
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`University
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`at
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`communicates on a
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`College Station, Texas. Ms. Clark reports directly
`regular basis with Mr. Armstrongin this District. Ms. Clark travels on a
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`to Mr. Blackwell and
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`perform work in the Marshall data center.
`regular basis to this District to
`Christopher Rice is a named inventor on a number of AGIS patents and a
`consultant of AGIS Inc. and works from Superior, CO. Mr. Riceis a
`eafiwate developer and
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`18.
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`programmer who workson the LifeRing solution and has agreedto travel to the Eastern District
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`of Texasif called onto
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`testify.
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`19.
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`Margaret Beyeris the Corporate Secretary of AGIS Inc. and AGIS. Mrs. Beyer
`works from AGIS Inc.’s Jupiter, Florida office. Malcolm K. Beyer, III is a programmer and
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`system administrator for AGIS Inc. and works from AGISInc.’s Jupiter, Florida office and Boca
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`Raton, Florida. Ronald Wisneski is the Chief Financial Officer and Treasurer of AGIS Inc. and
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`AGIS and worksin Jupiter, Florida. George Barros is AGIS Inc.’s Director of Business
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`Development. Mr. Barros lives and works from Vienna, Virginia and keeps documents and
`materials relevant to AGIS Inc.’s ongoing sales and marketingefforts and contract procurement
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`for AGIS Inc.’s LifeRing products and solutions in Vienna, Virginia.
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`20.
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`including such individuals named above, that they
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`I have confirmed with each of the out-of-state employees and consultants,
`are
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`willing
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`andable to travel to Marshall,
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`Texasif called on to
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`testify.
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`21.
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`Overthe course of my career I have actively engaged in business in and around
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`this District and in the State of Texas and have longstanding personal and family business
`connectionsto this District. My family has owned over 2500 acres of land in Bowie County,
`Texas since 1867. I have owned
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`parcels of land in Bowie County since 1962. I own
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`total of 412
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`acres situated approximately 6 miles south of the town of Boston,i.e., “Old Boston,”
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`on Texas
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`Highway 8. My property in Bowie County is currently leased to International Paper through June
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`30, 2051. As described above, I founded and worked for APC in Texas from 1987 through 1999.
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`These
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`longstanding business and personal connectionsto the Eastern District of Texas were
`someof the reasons I decided to form AGIS in Texas,establish its office in Marshall, and
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`expandthe business to include the Marshall data center.
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`I declare underpenalty
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`of
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`perjury that the foregoing is true and correct to the best of my
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`knowledge.
`Executed on June
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`2021 in Jupiter, FL.
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`7.
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`Lan Malcolm K.
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`Beyer,
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`Jr.
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