Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 1 of 24 PageID #: 18039
`
`
`
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
` Plaintiff,
`
`v.
`
`HUAWEI DEVICE USA INC., et al.,
`
` Defendants.
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
` Plaintiff,
`
`v.
`
`APPLE INC.,
`
` Defendant.
`
`
`
`
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`Civil Action No. 2:17-CV-513-JRG
`(LEAD CASE)
`
`
`
`Civil Action No. 2:17-CV-516-JRG
`(CONSOLIDATED CASE)
`
`APPLE INC.’S OPPOSITION TO DKT. NO. 235, AGIS SOFTWARE DEVELOPMENT
`LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT OF NO INVALIDITY
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 2 of 24 PageID #: 18040
`
`TABLE OF CONTENTS
`
`
`
`
`
`Pages
`
`INTRODUCTION ...............................................................................................................1
`
`RESPONSE TO AGIS’S STATEMENT OF UNDISPUTED MATERIAL
`FACTS .................................................................................................................................2
`
`
`
`I.
`
`II.
`
`III.
`
`APPLE’S STATEMENT OF ADDITIONAL RELEVANT FACTS .................................4
`
`IV.
`
`RESPONSE TO AGIS’S STATEMENT OF THE ISSUE TO BE DECIDED ..................8
`
`V.
`
`LEGAL STANDARD ..........................................................................................................9
`
`VI.
`
`ARGUMENT .......................................................................................................................9
`
`A.
`
`There Are Genuine Disputes Of Material Fact Regarding Whether Poulin
`Invalidates AGIS’s Asserted Claims. ......................................................................9
`
`1.
`
`2.
`
`3.
`
`There Is At Least A Genuine Factual Dispute Regarding Whether
`Poulin Discloses “User-Selectable Symbols.” ...........................................10
`
`AGIS Ignores Evidence Showing That “User-Selectable Symbols”
`Were Obvious. ...........................................................................................11
`
`AGIS’s Motion Does Not Pertain To All Asserted Claims And
`Should Be Denied On That Basis As Well. ...............................................12
`
`B.
`
`There Are Genuine Factual Disputes Regarding Whether The FBCB2
`System Invalidates AGIS’s Asserted Claims. ........................................................12
`
`1.
`
`2.
`
`3.
`
`Ample Evidence Exists Demonstrating That First Devices In The
`FBCB2 System Do Not Have Access To The IP Addresses Of
`Other Second Devices. ...............................................................................13
`
`AGIS Either Mischaracterizes Or Wholly Ignores Evidence
`Showing How The FBCB2 System Meets The “IP Access”
`Limitation. ..................................................................................................15
`
`AGIS’s Motion Does Not Pertain To All Asserted Claims And
`Should Be Denied On That Basis As Well. ...............................................17
`
`VII. CONCLUSION ..................................................................................................................18
`
`
`
`i
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 3 of 24 PageID #: 18041
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`
`
`Pages
`
`ActiveVideo Networks, Inc. v. Verizon Comm’cns, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012)......................................................................................... 13
`
`Celotex Corp. v. Catrett,
`477 U.S. 317 (1986) ............................................................................................................ 9
`
`Cheese Sys., Inc. v. Tetra Pak Cheese & Powder Sys., Inc.,
`725 F.3d 1341 (Fed. Cir. 2013)......................................................................................... 14
`
`Edwards Sys. Tech. v. Dig. Control Sys., Inc.,
`99 F. App’x 911 (Fed. Cir. 2004) ..................................................................................... 10
`
`Environmental Designs, Ltd. v. Union Oil Co.,
`713 F.2d 693 (Fed. Cir. 1983)........................................................................................... 11
`
`Lectec Corp. v. Chattem, Inc.,
`C.A. No. 5:08-CV-130, 2010 WL 11433202 (E.D. Tex. Dec. 16, 2010) ......................... 10
`
`Rules
`
`Fed. R. Civ. P. 56(c) ....................................................................................................................... 9
`
`
`
`
`ii
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 4 of 24 PageID #: 18042
`
`
`
`
`
`TABLE OF EXHIBITS
`
`
`Exhibit Number
`
`Description
`
`Ex. 1
`Ex. 2
`Ex. 3
`Ex. 4
`Ex. 5
`Ex. 6
`Ex. 7
`Ex. 8
`Ex. 9
`Ex. 10
`
`US Pat. No. 9,445,251
`US Pat. No. 9,408,055
`US Pat. No. 9,467,838
`US Pat. No. 9,749,829
`US Pat. Pub. No. US20020115453 (Poulin)
`Clark Invalidity Report Excerpts
`Siegel Invalidity Report Excerpts
`Siegel Deposition Excerpts
`AGIS’s Final Election of Asserted Claims
`McAlexander Infringement Report Excerpts
`
`
`
`
`
`iii
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 5 of 24 PageID #: 18043
`
`
`
`
`
`
`I.
`
`INTRODUCTION
`
`AGIS provides no credible basis that could justify granting the sweeping relief it seeks—
`
`“that the Court preclude Apple from raising [the ‘Poulin’ and ‘FBCB2’ prior art references], and
`
`any products associated with these references, at trial.” (Dkt. No. 235 at 9). AGIS’s motion for
`
`partial summary judgment of no invalidity (one of four different motions AGIS filed to prevent
`
`Apple from demonstrating the invalidity of the patents-in-suit to the jury) should be denied.
`
`First, for the Poulin reference, AGIS offers only attorney argument regarding Poulin’s
`
`disclosures. Those arguments pertain to only one limitation that is not even required by every
`
`asserted claim, and thus AGIS’s sweeping motion can be denied on that basis alone. Moreover,
`
`AGIS’s unsupported contentions do not overcome the evidence of record and expert opinion of
`
`Dr. Paul Clark explaining how the Poulin reference invalidates AGIS’s claims. AGIS also
`
`completely ignores evidence and Dr. Clark’s corresponding explanation demonstrating the
`
`obviousness of the claims in view of Poulin. Because genuine factual disputes exist concerning
`
`the Poulin reference and how it renders the asserted claims invalid, summary judgment should be
`
`denied.
`
`Second, for the FBCB2 system, AGIS again offers only concocted attorney argument about
`
`allegedly missing features of the prior art system. And again, AGIS’s arguments center on one
`
`claim limitation that does not exist in every asserted claim—defeating its motion on that basis
`
`alone. Nevertheless, ample evidence exists concerning the features of FBCB2 and how the system
`
`meets the asserted claims, including the factual and expert testimony of Dr. Neil Siegel, a
`
`developer of the FBCB2 system. At best, AGIS’s motion identifies disputed questions of fact that
`
`should be resolved by the jury at trial. AGIS’s motion for summary judgment should be denied.
`
`
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 6 of 24 PageID #: 18044
`
`
`
`
`
`
`II.
`
`RESPONSE TO AGIS’S STATEMENT OF UNDISPUTED MATERIAL FACTS
`
`Apple generally disagrees with AGIS’s statement of facts. (See Dkt. No. 235 at 1-2.)
`
`Regarding paragraphs 1-3 of AGIS’s statement of facts, Apple agrees that AGIS asserts the four
`
`patents that are the subject of its motion: U.S. Patent Nos. 9,445,251 (Ex. 1, the “’251 patent”);
`
`9,408,055 (Ex. 2, the “’055 patent”); 9,467,838 (Ex. 3, the “’838 patent”); and 9,749,829 (Ex. 4,
`
`the “’829 patent”). Apple also agrees that Apple asserts U.S. Patent Application Publication No.
`
`2002/0115453 (Ex. 5, “Poulin”) and the FBCB2 system as prior art. Apple disagrees with AGIS’s
`
`framing of the relevant facts and expert opinions regarding that prior art.
`
`In paragraph 4 of its statement of facts, AGIS claims that “Apple alleges that the Location
`
`Patents are anticipated by Poulin and anticipated or rendered obvious by FBCB2.” (Dkt. No. 235
`
`at 2.) That statement is correct regarding FBCB2, but incorrect regarding Poulin. In addition to
`
`anticipation, Apple and its expert Dr. Paul Clark disclose ample evidence showing that AGIS’s
`
`asserted claims are obvious in view of Poulin, either alone or in combination with other references.
`
`(See Ex. 6 (Clark report providing evidence that the asserted claims are “anticipated by Poulin or,
`
`at a minimum, rendered obvious by Poulin alone or in combination with Altman.”).)
`
`In paragraph 5 of its statement of facts, AGIS states that “[e]ach claim of the ’251 patent
`
`requires that “the first device does not have access to respective Internet Protocol addresses of the
`
`second devices.” (Dkt. No. 235 at 2.) Although these words appear in the claims of the ’251
`
`patent, AGIS’s statement of facts ignores that the “first device” and “second devices” of the claims
`
`are devices “included in [a] group” of devices that share location information with and send data
`
`to one another. (See Ex. 1 (’251 pat.) at 14:59-15:33; 17:59-18:38.) Likewise, in the claims of the
`
`’838 and ’829 patents that include this limitation, the “first” and “second” devices are members of
`
`
`
`2
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 7 of 24 PageID #: 18045
`
`
`
`
`
`
`a group of devices that share location information with and can send data to one another. (See Ex.
`
`3 (’838 pat.) at 14:52-15:31, 15:37-40; Ex. 4 (’829 pat.) at 14:59-15:41.)
`
`In paragraph 6 of its statement of facts, AGIS claims that “Dr. Siegel does not disclose any
`
`secondary reference to allegedly teach” the limitation that the devices in a communications or
`
`location-sharing group do not have access to each other’s IP addresses. (Dkt. No. 235 at 2.) To
`
`the extent that AGIS uses the term “secondary reference” to refer to a reference which, combined
`
`with FBCB2, renders the claims obvious, Apple agrees: Dr. Siegel alleges that the claims
`
`containing these limitations are anticipated by the FBCB2 system or rendered obvious by the
`
`FBCB2 system in view of the knowledge of a person of ordinary skill in the art at the time of the
`
`invention. (See Ex. 7 (Siegel Report) ¶¶ 116, 214, 412, 464.) But if AGIS uses “secondary
`
`reference” to suggest that Apple does not cite any support for the statement that the FBCB2 system
`
`meets this limitation, Apple disagrees. Dr. Siegel cites in support of his testimony U.S. Patent No.
`
`6,212,559 (the “’559 patent”), one of the patents Dr. Siegel obtained for FBCB2, as evidence of
`
`how FBCB2 works. (See id. ¶¶ 118-19, 215-16, 430-31, 484-85.)
`
`In paragraph 7 of its statement of facts, AGIS claims that “Dr. Siegel admits that all
`
`versions of FBCB2 are ‘dynamic’ and ‘[t]he FBCB2 units that are . . . acting in the role of a server
`
`will change over time.’” (Dkt. No. 235 at 2.) Apple disagrees. AGIS cites eight pages of Dr.
`
`Siegel’s deposition transcript in support of this allegation, but neither of those statements appears
`
`in the quoted portion of the transcript. (See Ex. 8 (Siegel Tr.) at 192:10-199:23.) Dr. Siegel has
`
`not provided an opinion in this case about “all versions of FBCB2.” Dr. Siegel’s description of
`
`the servers in the version of FBCB2 about which he opined in his report are quoted, in relevant
`
`part, below in Apple’s Statement of Additional Relevant Facts.
`
`
`
`3
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 8 of 24 PageID #: 18046
`
`
`
`
`
`
`
`In paragraph 8 of its statement of facts, AGIS states that Dr. Siegel “admitted at his
`
`deposition that FBCB2 dynamic electing servers require a startup procedure where IP addresses
`
`are exchanged among at least some of the systems.” (Dkt. No. 235 at 2.) It is unclear to what
`
`AGIS is referring. AGIS cites multiple paragraphs of Dr. Siegel’s report that do not mention IP
`
`addresses at all, as well as multiple pages of Dr. Siegel’s deposition transcript that do not mention
`
`a start-up procedure. Instead, when Dr. Siegel was asked whether, “as part of [the server] election
`
`and discovery process, IP addresses are exchanged,” he responded that that statement “is way too
`
`broad and misleading.” (Ex. 8 (Siegel Tr.) at 202:17-24.)
`
`III. APPLE’S STATEMENT OF ADDITIONAL RELEVANT FACTS
`
`AGIS asserts infringement of claims 5, 10, 15, 18, 19, 20, 38, 40, and 54 of the ’838 patent;
`
`claims 2, 5, 6, 12, 15, 18, 27, 29, 31, and 35 of the ’251 patent; claims 5, 7, 24, 32, 36, 42, and 54
`
`of the ’055 patent; and claims 2, 8, 10, 14, 30, 34, 42, 50, and 68 of the ’829 patent. (Ex. 9 (AGIS’s
`
`Final Election of Asserted Claims).) A subset of the asserted claims does not require “user-
`
`selectable symbols.” (Ex. 4 (’829 pat.) at claims 2, 8, 10, 30, 34, 42, and 68.)
`
`Dr. Paul Clark provided an expert report disclosing his opinion that Poulin invalidates the
`
`asserted claims of the ’251, ’838, ’829, and ’055 patents. (Ex. 6 (Clark report).) Dr. Clark’s report
`
`explains how the asserted claims are anticipated based on Poulin, obvious based on Poulin, and
`
`obvious based on Poulin in combination with U.S. Patent Application Publication No.
`
`2007/0281690 (“Altman”). (Id. at Sections X.A, XI.A, XII.A, and XIII.A.)
`
`As Dr. Clark explained, Poulin discloses “user-selectable symbols” because Poulin’s
`
`system includes users interacting with each other through web-based map displays and sending
`
`communications over such map displays. (See, e.g., Ex. 6 (Clark report) ¶¶ 595-606; see also Ex.
`
`5 (Poulin) ¶¶ 7 (“[S]ubscribers may exchange communications with other subscribers in their
`
`
`
`4
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 9 of 24 PageID #: 18047
`
`
`
`
`
`
`group via text messages provided over the web-based map display or their wireless device.”), 21,
`
`24, 29 (“Active subscribers may also communicate with other active subscribers using their
`
`wireless devices by sending short messages or placing voice calls.”).) In addition to anticipation,
`
`Dr. Clark explained why “user-selectable symbols” would have been obvious to a person of
`
`ordinary skill in the art in view of Poulin. (E.g., Ex. 6 (Clark report) ¶ 603 (“[I]t would have been
`
`obvious to simplify the manner of data transmission by allowing a user to initiate sending data to
`
`a second device simply by selecting that second device and directing the device to send the data.”).)
`
`And Dr. Clark also explained why user-selectable symbols would have been obvious in view of
`
`Poulin in combination with the Altman reference. (Id. ¶ 604.)
`
`Dr. Neil Siegel provided an expert report explaining his opinion that the FBCB2 system
`
`invalidates the asserted claims of the ’251, ’838, ’829, and ’055 patents. Dr. Siegel is an engineer
`
`and professor at the University of Southern California. (Ex. 7 (Siegel Report) ¶¶ 7-9.) Prior to
`
`joining USC in 2015, he spent most of his career at defense contractor Northrop Grumman
`
`Corporation (formerly TRW Inc.), where he worked on a variety of situational awareness,
`
`communications, and command-and-control systems for the military and first responders. (Id.
`
`¶¶ 10-12, 14.) From 1992 until 2004, he led the development of Force XXI Battle Command
`
`Brigade-and-Below (also known as “FBCB2,” “Blue Force Tracker,” and “Appliqué”), a system
`
`for communications and situational awareness. (See id. ¶¶ 51, 57-63.) The FBCB2 system consists
`
`of a specialized communication system (called the “Tactical Internet”) that supported situational
`
`awareness and command-and-control at the tactical echelons of war, together with computers, GPS
`
`receivers, software, and other elements. (See id. ¶ 51.)
`
`Like the FBCB2 system, the asserted patents are directed to a system for facilitating
`
`communications and situational awareness among a group of users. (See Ex. 7 (Siegel Report) ¶
`
`
`
`5
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 10 of 24 PageID #: 18048
`
`
`
`
`
`
`86.) The claims of the ’251, ’838, and ’829 patents that are the subject of this motion are directed
`
`to a system that, like FBCB2, allows groups of users to communicate with one another. (See, e.g.,
`
`Ex. 1 (’251 pat.) at 14:59-15:33, 15:34-35; 17:59-18:38, 18:39-41; Ex. 3 (’838 pat.) at 14:52-15:31,
`
`15:37-43; Ex. 4 (’829 pat.) at 14:59-15:41, 17:15-17.) Those claims require that each user’s device
`
`“does not have access to respective Internet Protocol addresses of” the other user devices in its
`
`group. (Id.) The other asserted claims do not include a limitation requiring that a first device not
`
`have access to IP addresses of second devices. (Ex. 3 (’838 pat.) at claims 10, 15, 18, 19, 20, 38,
`
`40, and 54; Ex. 2 (’055 pat.) at claims 5, 7, 24, 32, 36, 42, and 54; Ex. 4 (’829 pat.) at claims 2, 8,
`
`10, 14, 34, 42, 50, and 68.)
`
`In his expert report, Dr. Siegel explained that in the FBCB2 system, user devices that were
`
`members of a group (i.e., that shared location information and communications with one another)
`
`did not have access to each other’s IP addresses to communicate because the server routed users’
`
`messages to the appropriate IP addresses:
`
`When exchanging data on the Tactical Internet using TCP/IP
`protocols, FBCB2 devices did not need to have access to the
`respective Internet Protocol addresses of the one or more second
`devices included in the group. Instead, when a user signed on to
`FBCB2 and joined a group, the FBCB2 server routed the user’s
`messages and location information to the appropriate recipients
`based on the type of data being sent and/or addressee information
`provided by the FBCB2 user; the system knew who were the
`appropriate recipients for certain types of data, and for these types
`of data, the sender did not to enter any addressee information at all.
`For certain data, such as location information, the sender did not
`need to enter any addressee information at all, because the server
`broadcast the data automatically to all other members of the user’s
`group. For other types of data, such as text messages, FBCB2
`allowed users to designate particular users as recipients by
`specifying particular individuals or groups of individuals’ log-in
`names, role or title, or group name (e.g. a particular platoon). This
`addressee information was sent to the server, and the server routed
`the information to the appropriate IP address.
`
`
`
`6
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 11 of 24 PageID #: 18049
`
`
`(See Ex. 7 (Siegel Report) ¶ 74 (emphasis added).)
`
`Dr. Siegel’s expert report further explains that, at any given time, there were multiple
`
`different user groups within the FBCB2 system:
`
`
`
`
`
`One of FBCB2’s most innovative features was its flexible and
`dynamic network
`set-up
`and planning
`tools. . . . FBCB2
`automatically established many types of communications groups,
`and also allowed system administrators to set up additional such
`groups, in both cases corresponding to users who needed to share
`information and engage in remote control operations with each other
`(as described below). See, e.g., SIEGEL000355 at 5:22-6:44. For
`example, one type of such group might be organizational, such as
`all of the members of a tank platoon, or all of the members of an
`artillery battalion. See id. at 5:47-58. Another type of such group
`might be functional, that is, all of people in an area who are in the
`artillery branch, or all of the people in the area who are in the air-
`defense branch. In an actual military deployment, there would be
`many groups . . .
`
`(See id. ¶ 75-76.)
`
`With regard to the servers in the FBCB2 system, Dr. Siegel explained:
`
`The servers in FBCB2 consisted of computers mounted in army
`vehicles. That is, individual FBCB2 units were designated to receive
`information from FBCB2 devices and forward it to other FBCB2
`devices. Because users moved around and access to a particular
`server could be blocked by buildings, mountains, jamming, or other
`difficulties, there was not a single, static server designation in
`FBCB2 as there typically is in an office or consumer computer
`network. Instead, FBCB2 devices were programmed to collaborate
`and dynamically select one of their number to act as the server. If
`the unit acting as a server became unavailable for some reason—
`whether because it was blocked or due to damage in the war—the
`remaining units would collaborate and select another of the
`members to take over the role of server. Thus, a given FBCB2
`device could send and receive information via one or more servers
`during any given operation.
`
`(See id. ¶ 71.)
`
`At his deposition, Dr. Siegel explained that each FBCB2 client device only had access to
`
`the IP address of the device acting as the server for its group, but not the IP address of the client
`
`
`
`7
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 12 of 24 PageID #: 18050
`
`
`
`
`
`
`devices with which it was communicating. (Ex. 8 (Siegel Tr.) at 195:17-23; 196:21-197:2.) Dr.
`
`Siegel confirmed that, as a general matter, the FBCB2 software did not give each device access to
`
`the IP addresses of every other device. Rather, a first FBCB2 device could discover the IP address
`
`of a second FBCB2 device only under the “very specific condition” that the second device had
`
`been elected to act as the server. (Id. at 201:13-21.) Dr. Siegel further explained that the FBCB2
`
`device acting as a server for a given group of users (i.e., a group sharing location information and
`
`communications with one another, such as a platoon) did not have to be a part of that group. (Id.
`
`at 200:19-23.)
`
`IV. RESPONSE TO AGIS’S STATEMENT OF THE ISSUE TO BE DECIDED
`
`Apple disagrees with AGIS’s statement of the issue to be decided. First, Apple disagrees
`
`with AGIS’s claim that “the record contains no evidence” that Poulin and FBCB2 meet every
`
`limitation of the asserted claims. Second, Apple disagrees with AGIS’s framing of the issue
`
`covering all asserted claims of the ’251, ’055, ’838, and ’829 patents. AGIS’s motion argues that
`
`Poulin does not disclose the “user-selectable” symbols limitation of some claims and that FBCB2
`
`does not disclose a device not having access to IP addresses of other devices as required by some
`
`claims. Neither of those limitations is contained in every asserted claim of the ’251, ’055, ’838,
`
`and ’829 patents.
`
`The issue to be decided is whether genuine issues of material fact exist as to whether Poulin
`
`and the FBCB2 system render invalid each asserted claim of the ’251, ’055, ’838, and ’829 patents.
`
`Because the answer to that question is yes for both Poulin and the FBCB2 system, summary
`
`judgment is not warranted, and AGIS’s motion should be denied.
`
`
`
`8
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 13 of 24 PageID #: 18051
`
`
`
`
`
`
`V.
`
`LEGAL STANDARD
`
`Summary judgment is only appropriate “if the movant shows that there is no genuine
`
`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
`
`Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
`
`VI. ARGUMENT
`
`AGIS fails to provide any basis upon which the Court could grant the far-reaching relief
`
`AGIS requests. AGIS seeks to eliminate Poulin and the FBCB2 system from trial even though
`
`AGIS’s arguments do not even address invalidity for all of its asserted claims. AGIS requests
`
`summary judgment of no anticipation of the asserted claims of the ’251, ’055, ’838, and ’829
`
`patents in view of Poulin and the FBCB2 system. (Dkt. No. 235 at 2.) AGIS further requests that
`
`Apple be precluded completely from raising Poulin or the FBCB2 system at trial. (Id. at 9.)
`
`However, AGIS addresses only one claim limitation for each of Poulin and FBCB2 and fails to
`
`establish anything more than a disagreement among experts that is insufficient to support its
`
`sweeping request for summary judgment. And for both the Poulin prior art reference and the prior
`
`art FBCB2 system, the limitations AGIS addresses are required by only a subset of the asserted
`
`claims and thus fails to provide any argument that could warrant summary judgment for all asserted
`
`claims.
`
`A.
`
`There Are Genuine Disputes Of Material Fact Regarding Whether Poulin
`Invalidates AGIS’s Asserted Claims.
`
`AGIS argues for summary judgment based on an alleged lack of “user-selectable” symbols
`
`in Poulin. (Dkt. No. 235 at 4-6.) AGIS ignores disclosures in Poulin, cited by Dr. Clark, which
`
`teach the claimed user-selectable features. Moreover, AGIS fails to address the obviousness
`
`evidence explained in Dr. Clark’s report. Factual disputes therefore exist regarding the disclosures
`
`of Poulin, as well as the evidence of obviousness that AGIS does not even mention. Furthermore,
`
`
`
`9
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 14 of 24 PageID #: 18052
`
`
`“user-selectable” symbols are not a limitation of every asserted claim for which AGIS requests
`
`
`
`
`
`summary judgment.
`
`1.
`
`There Is At Least A Genuine Factual Dispute Regarding Whether
`Poulin Discloses “User-Selectable Symbols.”
`
`AGIS’s motion relies only on attorney argument to contend that the Poulin reference fails
`
`to disclose “user-selectable symbols,” as required by a subset of the asserted claims of the ʼ838,
`
`ʼ251, ʼ055, and ʼ829 patents. But ample evidence exists concerning Poulin’s disclosure of that
`
`limitation, precluding summary judgment.
`
`Poulin discloses a system that allows a “subscriber” of a service to view the locations of
`
`other subscribers in a web-based map display and to communicate with those other subscribers.
`
`(Ex. 5 (Poulin) ¶¶ 21, 29.) Poulin discloses that users may exchange such communications by
`
`interacting with those map displays, discussing communications “with other subscribers in their
`
`group via text messages provided over the web-based map display or their wireless device.” (Id.
`
`¶ 7; see also id. ¶ 29.) Citing those disclosures, among others, Dr. Clark explained how Poulin’s
`
`map-based display and communications meet the limitations of AGIS’s asserted claims, including
`
`the user-selectable symbol limitations. (See, e.g., Ex. 6 (Clark report) ¶¶ 595-606.) AGIS’s expert,
`
`Mr. McAlexander, disagrees, and such disagreement among experts on a material fact should
`
`preclude summary judgment. Edwards Sys. Tech. v. Dig. Control Sys., Inc., 99 F. App’x 911, 922
`
`(Fed. Cir. 2004) (finding summary judgment improper where “conflicting evidence demonstrates
`
`a classic battle of the experts” and “creates a genuine issue of material fact”); see also Lectec Corp.
`
`v. Chattem, Inc., C.A. No. 5:08-CV-130, 2010 WL 11433202, at *2 (E.D. Tex. Dec. 16, 2010). At
`
`most, AGIS has identified a debate among the parties’ experts and a question of fact regarding
`
`Poulin to be settled at trial, and summary judgment of no invalidity in view of Poulin should be
`
`denied for all asserted claims.
`
`
`
`10
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 15 of 24 PageID #: 18053
`
`
`
`
`
`
`
`Moreover, AGIS’s arguments conflict with interpretation of AGIS’s claims used in Mr.
`
`McAlexander’s infringement opinions. AGIS faults Dr. Clark for allegedly failing to show a “user
`
`selectable” symbol selected from an interactive map. (Dkt. No. 235 at 6-7.) Even if true, however,
`
`that alleged deficiency does not avoid invalidity, at least as Mr. McAlexander interprets the claims.
`
`In his infringement analysis, Mr. McAlexander states that the claim limitation of “identifying user
`
`interaction with the interactive display selecting one or more of the user-selectable symbols”
`
`
`
` (Ex. 10 (McAlexander Opening Report) at B-
`
`a101-108
`
`
`
` Thus, even the alleged deficiency AGIS argues in addressing
`
`Dr. Clark’s invalidity analysis cannot support summary judgment of no invalidity, in view of
`
`AGIS’s own expert’s interpretation of its asserted claims.
`
`Furthermore, to the extent AGIS implies that its claims are limited to interacting directly
`
`with a display screen (i.e., by touching a symbol on a touch screen), that argument conflicts with
`
`AGIS’s dependent claims. For example, unasserted dependent claim 15 of the ’838 patent requires
`
`that “the user interaction with the display selecting the one or more user-selectable symbols in the
`
`second set of symbols comprises touching the one or more user-selectable symbols.” (Ex. 3 (’838
`
`pat.) at 16:18-23.) Thus, the “user-selectable” symbols in AGIS’s independent claims are broader
`
`than just symbols that can be selected by touching a map display. See Environmental Designs,
`
`Ltd. v. Union Oil Co., 713 F.2d 693, 699 (Fed. Cir. 1983).
`
`2.
`
`AGIS Ignores Evidence Showing That “User-Selectable Symbols”
`Were Obvious.
`
`AGIS’s motion fails to address evidence of obviousness cited by Dr. Clark, and its motion
`
`for no invalidity should be denied for that additional reason. AGIS incorrectly states that Dr. Clark
`
`“does not proffer any combination or evidence of the knowledge of a person of ordinary skill in
`
`
`
`11
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 16 of 24 PageID #: 18054
`
`
`
`
`
`
`the art to show obviousness” for user-selectable symbols. (Dkt. No. 235 at 6.) To the contrary,
`
`Dr. Clark explained that user-selectable symbols would have been obvious in view of Poulin and
`
`the knowledge of a person of ordinary skill at least because they would “simplify the manner of
`
`data transmission by allowing a user to initiate sending data to a second device simply by selecting
`
`that second device and directing the device to send the data.” (Ex. 6 (Clark Report) ¶ 603.) Dr.
`
`Clark further explained that this claim limitation is obvious in view of Poulin in combination with
`
`the Altman reference. ( Id. ¶ 604.) AGIS does not even acknowledge those explanations of
`
`obviousness, and there is at least genuine factual dispute regarding obviousness of “user-selectable
`
`symbols,” either in view of Poulin alone or in view of Poulin in combination with Altman.
`
`3.
`
`AGIS’s Motion Does Not Pertain To All Asserted Claims And Should
`Be Denied On That Basis As Well.
`
`AGIS requests summary judgment of no invalidity for all of its asserted claims of four
`
`patents based on the “user-selectable symbols” limitations, but asserted claims 2, 8, 10, 30, 34, 42,
`
`and 68 of the ’829 patent do not require user-selectable symbols. AGIS’s motion should be denied
`
`for each of asserted claims 2, 8, 10, 30, 34, 42, and 68 of the ’829 patent for that additional reason.
`
`B.
`
`There Are Genuine Factual Disputes Regarding Whether The FBCB2
`System Invalidates AGIS’s Asserted Claims.
`
`AGIS advances two arguments for summary judgment of no invalidity concerning the
`
`FBCB2 system. Both arguments relate to claim limitations requiring that “the first device does
`
`not have access to respective Internet Protocol addresses of the second devices” (the “IP access
`
`limitation”). (Dkt. No. 235 at 6.) AGIS argues (1) that Dr. Siegel’s report “fails to demonstrate”
`
`that FBCB2 meets this limitation and (2) that the record contains “uncontroverted evidence that
`
`supports the conclusion” that FBCB2 does not meet this limitation. (Id. at 7-8.) Neither assertion
`
`
`
`12
`
`

`

`Case 2:17-cv-00513-JRG Document 273 Filed 01/09/19 Page 17 of 24 PageID #: 18055
`
`
`is true. Furthermore, the limitation on which AGIS hinges both arguments is not even included in
`
`
`
`
`
`every asserted claim.
`
`1.
`
`Ample Evidence Exists Demonstrating That First Devices In The
`FBCB2 System Do Not Have Access To The IP Addresses Of Other
`Second Devices.
`
`Dr. Siegel’s report demonstrates that FBCB2 devices lack access to the IP addresses of
`
`other FBCB2 devices, as required by the IP access limitation of the asserted claims. In each case
`
`in which Dr. Siegel discusses a claim containing an IP access limitation, Dr. Siegel explains his
`
`opinion that FBCB2 anticipates the claim. (See Ex. 7 (Siegel Report) ¶¶ 116, 214, 412, 464.)
`
`Because the relevant claim limitation is a negative limitation—one requiring that the claimed
`
`system not have a certain feature—Dr. Siegel supports his opinion by explaining how the FBCB2
`
`system operates without that feature. Specifically, he explains that FBCB2 devices are able to
`
`send IP-based communications and information without having access to the IP addresses of the
`
`recipient devices because the FBCB2 server—not the FBCB2 client devices themselves—routes
`
`IP