Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 1 of 15 PageID #: 14853
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
` Plaintiff,
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`v.
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`HUAWEI DEVICE USA INC., et al.,
`
` Defendants.
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
` Plaintiff,
`
`v.
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`APPLE INC.,
`
` Defendant.
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`
`
`
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`Civil Action No. 2:17-CV-513-JRG
`(LEAD CASE)
`
`
`
`Civil Action No. 2:17-CV-516-JRG
`(CONSOLIDATED CASE)
`
`DEFENDANT APPLE INC.’S MOTION FOR SUMMARY JUDGMENT OF
`APPLICATION OF POST-AIA LAW TO U.S. PATENT NOS. 9,408,055; 9,445,251;
`9,467,838; AND 9,749,829; AND FOR SUMMARY JUDGMENT OF
`UNENFORCEABILITY DUE TO UNCLEAN HANDS
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`

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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 2 of 15 PageID #: 14854
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`TABLE OF CONTENTS
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`Pages
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`INTRODUCTION ...............................................................................................................1
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`STATEMENT OF UNDISPUTED MATERIAL FACTS ..................................................2
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`
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`I.
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`II.
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`III.
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`LEGAL STANDARD ..........................................................................................................3
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`A.
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`B.
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`C.
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`Summary Judgment .................................................................................................3
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`Application Of Post-AIA Law .................................................................................3
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`Unclean Hands .........................................................................................................4
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`IV.
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`STATEMENT OF ISSUES TO BE DECIDED BY THE COURT ....................................4
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`V.
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`ARGUMENT .......................................................................................................................4
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`A.
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`B.
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`Post-AIA Law Governs The ’055, ’251, ’838, And ’829 Patents, Just As
`AGIS Represented To The Patent Office.................................................................5
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`AGIS’s Contradictory Factual Assertions Enhanced Its Position In The
`Patent Office, Attempt To Enhance Its Position Regarding Validity In This
`Forum, And Warrant Summary Judgment Of Unclean Hands. ...............................6
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`VI.
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`CONCLUSION ....................................................................................................................9
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`i
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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 3 of 15 PageID #: 14855
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`
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`Cases
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`TABLE OF AUTHORITIES
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`
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`Pages
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`Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242 (1986) ............................................................................................................ 3
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`Celotex Corp. v. Catrett,
`477 U.S. 317 (1986) ............................................................................................................ 3
`
`Gilead Scis., Inc. v. Merck & Co.,
`88 F.3d 1231 (Fed. Cir. 2018)......................................................................................... 4, 9
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`Keystone Driller Co. v. Gen. Excavator Co.,
`290 U.S. 240 (1933) ........................................................................................................ 4, 9
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`Little v. Liquid Air Corp.,
`37 F.3d 1069 (5th Cir. 1994) .............................................................................................. 3
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`Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co.,
`324 U.S. 806 (1945) ............................................................................................................ 9
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`Statutes
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`35 U.S.C. § 102(a) ...................................................................................................................... 4, 8
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`Leahy–Smith America Invents Act, Pub. L. No. 112‐29, 125 Stat. 284 (2011) ..................... 3, 5, 6
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`Rules
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`Fed. R. Civ. P. 56(a) ....................................................................................................................... 3
`
`Regulations
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`37 C.F.R § 1.55 ............................................................................................................................... 7
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`37 C.F.R § 1.78 ............................................................................................................................... 7
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`Other Authorities
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`78 Fed. Reg. 11024 (Feb. 14, 2013) ............................................................................................... 6
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`Manual of Patent Examining Procedure § 2159.02 ........................................................................ 6
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`Manual of Patent Examining Procedure § 2159.04 ........................................................................ 7
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`ii
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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 4 of 15 PageID #: 14856
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`TABLE OF EXHIBITS
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`Exhibit Number
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`Description
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`Ex. 1
`Ex. 2
`Ex. 3
`Ex. 4
`Ex. 5
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`Ex. 6
`Ex. 7
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`Ex. 8
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`Ex. 9
`Ex. 10
`Ex. 11
`Ex. 12
`Ex. 13
`Ex. 14
`Ex. 15
`Ex. 16
`Ex. 17
`Ex. 18
`Ex. 19
`Ex. 20
`Ex. 21
`Ex. 22
`Ex. 23
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`U.S. Patent No. 9,408,055
`U.S. Patent No. 9,445,251
`U.S. Patent No. 9,467,838
`U.S. Patent No. 9,749,829
`’838 File History Excerpt - 2015-10-30 Corrected Application Data
`Sheet
`’838 File History Excerpt - 2016-04-25 Reply to Office Action
`’829 File History Excerpt - 2015-10-07 Corrected Application Data
`Sheet
`’829 File History Excerpt - 2016-01-20 Corrected Application Data
`Sheet
`’251 File History Excerpt - 2015-11-13 Reply to Office Action
`’251 File History Excerpt - 2016-01-26 Reply to Office Action
`’251 File History Excerpt - 2016-06-03 Reply to Office Action
`’055 File History Excerpt - 2015-10-30 Reply to Office Action
`’055 File History Excerpt - 2016-02-26 Reply to Office Action
`’055 File History Excerpt - 2016-05-31 Reply to Office Action
`AGIS's Responses to Apple's Interrogatories Nos. 12-15
`AGIS's Responses to Apple's Requests for Admission Nos. 1-4
`AGIS's Responses to Apple's Interrogatories Nos. 17-22
`McAlexander Infringement Report Excerpts
`McAlexander Validity Report Excerpts
`’838 File History Excerpt - 2016-08-04 Office Action
`’838 File History Excerpt - 2015-08-19 Office Action
`’829 File History Excerpt - 2015-02-27 Application Data Sheet
`’829 File History Excerpt - 2015-04-07 Office Action
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`iii
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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 5 of 15 PageID #: 14857
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`I.
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`INTRODUCTION
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`During prosecution of four of the patents-in-suit, Plaintiff AGIS1 or its sister entity
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`represented to the Patent Office that its applications included “claims that have an effective filing
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`date on or after March 16, 2013,” and that they are accordingly governed by post-AIA law. AGIS
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`now attempts to renounce those representations. AGIS does so because it seeks to establish priority
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`dates going back as early as 2003 by asserting conception and reduction to practice of certain
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`claims before its earliest-filed application—an assertion that is prohibited under post-AIA law.
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`Apple respectfully submits that this Court should apply post-AIA law to four of the patents-in-
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`suit—consistent with the positions AGIS entities took in the Patent Office.
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`Apple further respectfully submits that AGIS’s tactics warrant a finding of unclean hands.
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`AGIS made the unequivocal factual representation to the Patent Office that its patent applications
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`(now issued patents) contained claims that had an effective filing date on or after March 16, 2013.
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`AGIS thus avoided the Patent Office’s scrutiny over whether the claims were enabled or otherwise
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`supported by applications filed prior to March 2013. There was no need for the Patent Office to
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`undertake such an analysis in view of AGIS’s factual statements that at least some of the claims
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`had an effective filing date on or after March 2013.
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`AGIS now says the opposite of its representations to the Patent Office to improve its
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`validity arguments in this case—going so far as to deny, in Requests for Admission, the word-for-
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`word factual statements made in the Patent Office. This is not a situation where different legal
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`standards in the Patent Office and District Courts (like claim construction) can justify advancing
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`different positions in the two venues. Instead, having secured issuance of its patents, AGIS now
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`1 “AGIS” refers to Plaintiff AGIS Software Development LLC. Several of the patents-in-suit were
`prosecuted by Plaintiff’s sister entity—AGIS, Inc.—before being assigned to Plaintiff shortly
`before this lawsuit.
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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 6 of 15 PageID #: 14858
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`directly contradicts factual statements made during prosecution to gain an upper hand in asserting
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`the patents and shielding them from invalidation. No justification exists for AGIS’s tactics, which
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`have forced Apple to expend resources responding to a variety of improper validity theories. A
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`finding of unenforceability due to unclean hands is an appropriate remedy under these
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`circumstances.
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`II.
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`STATEMENT OF UNDISPUTED MATERIAL FACTS
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`AGIS asserts infringement of U.S. Patent Nos. 9,408,055 (Ex. 1, the “’055 patent”);
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`9,445,251 (Ex. 2, the “’251 patent”); 9,467,838 (Ex. 3, the “’838 patent”); and 9,749,829 (Ex. 4,
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`the “’829 patent”). (Dkt. No. 32.) Each of the ’055, ’251, and ’829 patents claims priority to the
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`’838 patent. AGIS (or its sister entity) repeatedly told the Patent Office that each of the ’838 and
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`’829 patents’ respective applications “(1) claims priority to or the benefit of an application filed
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`before March 16, 2013 and (2) also contains, or contained at any time, a claim to a claimed
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`invention that has an effective filing date on or after March 16, 2013” and thus was subject to post-
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`AIA law. (Ex. 5 at 3; Ex. 6 at 15-16; Ex. 7 at 2; Ex. 8 at 2; Ex. 22 at 4.) Based on those
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`representations, the Patent Office applied post-AIA law. (Ex. 20 at 2; Ex. 23 at 2.) AGIS also
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`repeatedly told the Patent Office that each of the ’055 and ’251 patents’ respective applications
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`“claims the benefit of [the ’838 patent], which contains or contained a claim having an effective
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`filing date on or after March 16, 2013” and thus was subject to post-AIA law. (Ex. 9 at 10; Ex. 10
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`at 8-9; Ex. 11 at 11; Ex. 12 at 13-14; Ex. 13 at 12; Ex. 14 at 16.)
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`In this case, AGIS now “contends that the asserted claims of the ’251, ’055, ’838, and ’829
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`Patents are subject to pre-AIA law” and that “[t]he ’251, ’055, ’838, and ’829 Patents and their
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`respective applications do not contain, and did not contain at any time, a claim to a claimed
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`invention having an effective filing date on or after March 16, 2013,” denying that post-AIA law
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`2
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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 7 of 15 PageID #: 14859
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`applies to the patents. (Ex. 15 at 5; Ex. 16 at 4-5.) AGIS also contends
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` to swear behind certain prior art under pre-AIA law. (Ex. 17 at 15-30.)
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`AGIS’s technical expert, Joseph McAlexander, opines that various prior art systems do not qualify
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`as prior art because the asserted claims were allegedly conceived and reduced to practice earlier.
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`(See generally Exs. 18 and 19.)
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`III. LEGAL STANDARD
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`A.
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`Summary Judgment
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`A movant is entitled to summary judgment if “there is no genuine dispute as to any material
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`fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex
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`Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute of fact is “genuine” only if evidence
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`presented “is such that a reasonable jury could return a verdict for the nonmoving
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`party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[T]he party moving for
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`summary judgment must ‘demonstrate the absence of a genuine issue of material fact,’ but need
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`not negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075
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`(5th Cir. 1994) (quoting Celotex, 477 U.S. at 323).
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`B.
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`Application Of Post-AIA Law
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`Post-AIA law applies “to any application for patent, and to any patent issuing thereon, that
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`contains or contained at any time (A) a claim to a claimed invention that has an effective filing
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`date as defined in section 100(i) of title 35, United States Code, that is on or after [March 16,
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`2013]; or (B) a specific reference under section 120, 121, or 365(c) of title 35, United States Code,
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`to any patent or application that contains or contained at any time such a claim.” Leahy–Smith
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`America Invents Act (“AIA”), Pub. L. No. 112‐29, § 3(n)(1), 125 Stat. 284, 293 (2011). The AIA
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`3
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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 8 of 15 PageID #: 14860
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`defines prior art as including public sales, offers for sale, and knowledge occurring “before the
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`effective filing date of the claimed invention,” rather than before the invention date, and a patentee
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`cannot swear behind prior art by establishing an invention earlier than its filing date under post-
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`AIA law. 35 U.S.C. § 102(a) (2015) (post-AIA) (emphasis added).
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`C.
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`Unclean Hands
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`Unclean hands are found where a party’s improper conduct “has immediate and necessary
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`relation to the equity that he seeks in respect of the matter in litigation.” Keystone Driller Co. v.
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`Gen. Excavator Co., 290 U.S. 240, 245 (1933). The “immediate and necessary relation”
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`requirement “generally must be met if the conduct normally would enhance the claimant’s position
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`regarding legal rights that are important to the litigation if the impropriety is not discovered and
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`corrected.” Gilead Scis., Inc. v. Merck & Co., Inc., 888 F.3d 1231, 1240 (Fed. Cir. 2018).
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`IV.
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`STATEMENT OF ISSUES TO BE DECIDED BY THE COURT
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`1. Whether post-AIA law governs the ’055, ’251, ’838, and ’829 patents in view of AGIS’s
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`repeated statements during prosecution that post-AIA law governs the ’055, ’251, ’838, and ’829
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`patents.
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`2. Whether AGIS’s conduct in this litigation, directly contradicting its representations to
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`the Patent Office, warrants summary judgment of unclean hands.
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`V.
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`ARGUMENT
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`AGIS told the Patent Office that the application leading to the ʼ838 patent contained at
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`least one claim that was not entitled to priority earlier than March 16, 2013, and that the ’838
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`patent—and, therefore, the ʼ055, ʼ251, and ʼ829 patents, which claim priority to the ʼ838 patent—
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`are governed by post-AIA law. AGIS’s factual representations negated the need for a
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`determination from the Patent Office that AGIS’s claims could not claim priority before March
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`4
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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 9 of 15 PageID #: 14861
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`16, 2013. The Patent Office did not need to undertake a full review to determine each claim’s
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`priority date in view of AGIS’s factual representations throughout prosecution.
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`AGIS now tries to take back those factual statements to avoid application of post-AIA
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`law—a strategic about-face to gain an improper advantage in this litigation. AGIS and its expert
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`use that advantage to push theories of prior conception and reduction to practice, which would be
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`unavailable to AGIS under post-AIA “first to file” law. That tactical contradiction of prior
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`statements warrants summary judgment of unclean hands and unenforceability.
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`A.
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`Post-AIA Law Governs The ’055, ’251, ’838, And ’829 Patents, Just As AGIS
`Represented To The Patent Office.
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`Post-AIA law governs the ’838 patent because the application that eventually issued as the
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`’838 patent contained a claim having an effective filing date on or after March 16, 2013 (a “post-
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`AIA claim”). AGIS’s inventors confirmed that fact multiple times at the Patent Office. For
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`example, AGIS received an office action that rejected the ’838 patent’s application in part because
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`certain added claim limitations lacked written description support. (Ex. 21 at 2-3.) In response,
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`AGIS corrected its application data sheet to indicate that the application contained post-AIA claims
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`and highlighted that correction for the examiner, stating that it was “understood that the present
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`application will be examined under the post-AIA, first-to-file provisions of the patent laws.” (Ex.
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`5 at 3; Ex. 6 at 15-16.) The Patent Office did just that, applying post-AIA law and withdrawing
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`the written description rejections. (Ex. 20 at 2.) Because the ’838 patent’s application contained
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`a post-AIA claim, the application and “any patent issuing thereon”—i.e., the ’838 patent—is
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`subject to post-AIA law. AIA § 3(n)(1). The AIA unambiguously prescribes that result. Id.
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`Once an applicant confirms its claims are governed by post-AIA law, as AGIS did at the
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`Patent Office, the application of post-AIA law to that application (and any patent issuing thereon)
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`is permanent, regardless of what ultimately happens to any of the post-AIA claims. Even if all
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`5
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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 10 of 15 PageID #: 14862
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`post-AIA claims were eventually cancelled from the ’838 patent’s application, the application still
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`“contained at any time” a post-AIA claim. Id. The continuing applicability of post-AIA law in
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`such a scenario was confirmed when the AIA was enacted. 78 Fed. Reg. 11024, 11043 (Feb. 14,
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`2013) (“If an application on filing contains at least one claim having an effective filing date before
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`March 16, 2013, and at least one claim having an effective filing date on or after March 16, 2013,
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`the application will be examined under AIA even if the latter claims are cancelled.”); see also
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`Manual of Patent Examining Procedure (“MPEP”) § 2159.02 (9th ed., Rev. 8) (Jan. 2018). Thus,
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`post-AIA law governs the ’838 patent.
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`Each of the ’055, ’251, and ’829 patents claims priority through the ’838 patent—and are
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`therefore also governed by post-AIA law because they claim priority to a “patent or application
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`that contains or contained at any time” a post-AIA claim. AIA § 3(n)(1). AGIS again confirmed
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`that point throughout prosecution of its patents, even re-iterating the point whenever an examiner
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`referenced pre-AIA law in a rejection. (Ex. 9 at 10; Ex. 10 at 8-9; Ex. 11 at 11; Ex. 12 at 13-14;
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`Ex. 13 at 12; Ex. 14 at 16.) Additionally, AGIS confirmed that the ’829 patent’s application itself
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`contained at least one post-AIA claim. (Ex. 7 at 2; Ex. 8 at 2; Ex. 22 at 4.) The ’829 patent is
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`subject to post-AIA law for that additional reason. AIA § 3(n)(1). The Court should thus grant
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`summary judgment that post-AIA law governs the ’055, ’251, ’838, and ’829 patents.
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`B.
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`AGIS’s Contradictory Factual Assertions Enhanced Its Position In The
`Patent Office, Attempt To Enhance Its Position Regarding Validity In This
`Forum, And Warrant Summary Judgment Of Unclean Hands.
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`AGIS’s contradictory factual assertions in the Patent Office and this litigation warrant a
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`finding of unenforceability for unclean hands. AGIS benefitted from its assertions in the Patent
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`Office, and it now attempts—without justification—to run away from those representations to gain
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`an advantage in this litigation.
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`6
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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 11 of 15 PageID #: 14863
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`After enactment of the AIA, the Patent Office revised its rules to require an applicant on a
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`patent application filed after March 16, 2013 but claiming priority to any application filed before
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`March 16, 2013 (a “transition application”) to state whether the application contains or contained
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`at any time a post-AIA claim. 37 C.F.R §§ 1.55, 1.78 (2015). The purpose for requiring such
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`statements in transition applications was efficiency: to “assist the Office in determining whether
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`the transition application is subject to AIA 35 U.S.C. 102 and 103 or pre-AIA 35 U.S.C. 102 and
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`103.” MPEP § 2159.04. By requiring applicants to tell the Patent Office whether their claims,
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`and the applications in which they were filed, were pre-AIA or post-AIA, the Patent Office reduced
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`the burden on examiners for transition applications. In particular, the examiners did not need to
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`spend time performing a claim-by-claim analysis to affirmatively determine whether any claim
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`was not entitled to priority before March 2013, for example if the claim lacked enablement or
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`written description support in priority applications filed before March 2013.
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`AGIS avoided that scrutiny of at least some of its claims by affirmatively telling the Patent
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`Office that its claims were not entitled to a priority date earlier than March 16, 2013, and that post-
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`AIA law should therefore govern the applications in which those claims were filed. That was
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`advantageous for AGIS during prosecution: in effect, AGIS told the Patent Office that it does not
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`need to conduct an analysis of whether every one of its claims was adequately supported in pre-
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`2013 applications because—as a factual matter—such support did not exist, at least for one or
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`more claims. Indeed, AGIS first told the Patent Office that the ’838 patent’s application contained
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`post-AIA claims after receiving a rejection of the claims for, among other things, lack of written
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`description. (Ex. 5 at 3; Ex. 6 at 15-16; Ex. 21 at 2-3.) The next action from the Patent Office
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`applied post-AIA law and removed the written description rejection. (Ex. 20 at 2-15.)
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`7
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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 12 of 15 PageID #: 14864
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`In this case, AGIS now contends that pre-AIA law should govern and that certain claims
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`should be entitled to priority as early as December 2003. AGIS’s contradiction of its prior
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`representations improperly bolsters its validity arguments in this case. Under the “first to invent”
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`system imposed by pre-AIA law, certain public uses, sales, or knowledge are prior art against a
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`patent only if occurring “before the invention thereof by the applicant for patent,” and a patent
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`owner can “swear behind” prior art by establishing an earlier invention date. 35 U.S.C. § 102(a)
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`(2006) (pre-AIA) (emphasis added). The AIA transitioned to a “first to file” system, in which
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`public uses, sales, or knowledge are prior art only if occurring “before the effective filing date of
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`the claimed invention.” 35 U.S.C. § 102(a) (2015) (post-AIA) (emphasis added). Because post-
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`AIA law centers on the filing date, not the invention date, the swear-behind option cannot be used
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`to disqualify such prior art under post-AIA law.
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`Yet AGIS and Mr. McAlexander rely on the pre-AIA regime to avoid publicly used, sold,
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`and known prior art with a swear-behind, claiming that AGIS’s alleged inventions predate prior
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`art. (Exs. 18 and 19 (asserting that earlier conception and reduction to practice disqualifies the
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`LifeRing and FBCB2 systems as prior art).) AGIS denies the exact statements it made to the Patent
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`Office to avail itself of its alleged swear-behind. (Compare Ex. 6 at 15-16 (AGIS’s prosecution
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`counsel admitting that the ’838 patent application “(1) claims priority to or the benefit of an
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`application filed before March 16, 2013 and (2) also contains, or contained at any time, a claim to
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`a claimed invention that has an effective filing date on or after March 16 2013”), with Ex. 16 at 4-
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`5 (AGIS’s litigation counsel denying that the ’838 patent application “claims priority to or the
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`benefit of an application filed before March 16, 2013, and also contains, or contained at any time,
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`a claim to a claimed invention that has an effective filing date on or after March 16, 2013”), and
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`Ex. 15 at 5 (AGIS’s litigation counsel contending that
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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 13 of 15 PageID #: 14865
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` That conduct
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`renders AGIS’s hands unclean because it would enhance AGIS’s position regarding invalidity by
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`disqualifying legitimate prior art. See Gilead Scis., 888 F.3d at 1240, 1247. Such conduct is a
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`“willful act concerning the cause of action which rightfully can be said to transgress equitable
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`standards of conduct.” Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806,
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`815 (1945).
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`The Court is “not bound by formula or restrained by any limitation that tends to trammel
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`the free and just exercise of discretion” in determining the consequence of AGIS’s unclean hands.
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`Keystone Drilling, 290 U.S. at 245-46; see also Precision Instrument, 324 U.S. at 815. AGIS’s
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`disregard for its representations to the Patent Office, made under a duty of candor and good faith,
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`warrant a finding of unenforceability of the four affected patents (i.e., the ’055, ’251, ’838, and
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`’829 patents) and should preclude assertion of those patents in this case. See, e.g., Gilead Scis.,
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`888 F.3d at 1247; Keystone Drilling, 290 U.S. at 246-47; Precision Instrument, 324 U.S. at 819.
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`VI. CONCLUSION
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`For the foregoing reasons, Apple respectfully requests that the Court grant summary
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`judgment that post-AIA law applies to the ’055, ’251, ’838, and ’829 patents, and that each of
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`those asserted patents is unenforceable in this litigation for unclean hands.
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`9
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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 14 of 15 PageID #: 14866
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`Respectfully submitted:
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`/s/ Melissa R. Smith
`Melissa Richards Smith
`State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Ave.
`Marshall, TX 75670
`Tel: (903) 934-8450
`Fax: (903) 934-9257
`melissa@gillamsmithlaw.com
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`John M. Desmarais
`Paul A. Bondor
`Michael P. Stadnick
`Ameet A. Modi
`Cosmin Maier
`Kerri-Ann Limbeek
`Brian Matty
`Tom BenGera
`Kathryn Bi
`Francesco Silletta
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`Telephone: (212) 351-3400
`Facsimile: (212) 351-3401
`Email: jdesmarais@desmaraisllp.com
`Email: pbondor@desmaraisllp.com
`Email: mstadnick@desmaraisllp.com
`Email: amodi@desmaraisllp.com
`Email: cmaier@desmaraisllp.com
`Email: klimbeek@desmaraisllp.com
`Email: bmatty@desmaraisllp.com
`Email: tbengera@desmaraisllp.com
`Email: kbi@desmaraisllp.com
`Email: fsilletta@desmaraisllp.com
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`ATTORNEYS FOR DEFENDANT
`APPLE INC.
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`Dated: December 14, 2018
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`Case 2:17-cv-00513-JRG Document 244 Filed 12/18/18 Page 15 of 15 PageID #: 14867
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically in
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`compliance with Local Rule CV-5(a). Plaintiff’s counsel of record were served with a true and
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`correct copy of the foregoing document by electronic mail on December 14, 2018.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`11
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