Case 2:17-cv-00513-JRG Document 300 Filed 01/16/19 Page 1 of 9 PageID #: 19310
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`v.
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`HUAWEI DEVICE USA INC. ET AL.,
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`Defendants.
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`Case No. 2:17-CV-0513-JRG
`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`APPLE, INC.,
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`Defendant.
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`Case No. 2:17-CV-0516-JRG
`(CONSOLIDATED CASE)
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`JURY TRIAL DEMANDED
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S REPLY TO
`APPLE INC.’S RESPONSE IN OPPOSITION TO
`AGIS’S MOTION FOR PARTIAL SUMMARY JUDGMENT
`OF NO INVALIDITY (DKT. 235)
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`Case 2:17-cv-00513-JRG Document 300 Filed 01/16/19 Page 2 of 9 PageID #: 19311
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`AGIS Software Development LLC (“AGIS”), by and through its undersigned counsel,
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`hereby submits this reply in support of its Motion for Partial Summary Judgment of No
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`Invalidity (Dkt. 235).
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`I.
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`RESPONSE TO APPLE’S STATEMENT OF ADDITIONAL RELEVANT FACTS
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`Apple has failed to present a Statement of Undisputed Material Facts as required by
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`Local Rule CV-56(a) because the statements contain disputed facts, are argumentative, and lack
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`citations to proper summary judgment evidence under Local Rule CV-56(d). AGIS presents the
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`following responses to the allegations in the Statement of Undisputed Material Facts.
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`AGIS disputes that Poulin discloses “user-selectable symbols” because Poulin discloses
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`“users interacting with each other through web-based map displays and sending communications
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`over such map displays.”
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`AGIS disputes Apple’s statement of Dr. Neil Siegel’s experience and qualifications as
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`“material undisputed facts” relevant to this analysis. Further, AGIS disputes Apple’s disclosure
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`of entire paragraphs of Dr. Siegel’s opinions from his report and his deposition testimony as
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`material undisputed facts as explanations of how the FBCB2 system meets each and every
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`limitation of the asserted claims. Dr. Siegel’s report merely contains his opinions of how the
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`FBCB2 system allegedly meets those limitations.
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`II.
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`ARGUMENT
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`Apple has failed to establish that AGIS’s motion for partial summary judgment does not
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`provide a basis for which AGIS has requested the Court to grant relief.
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`Case 2:17-cv-00513-JRG Document 300 Filed 01/16/19 Page 3 of 9 PageID #: 19312
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`A.
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`POULIN DOES NOT MEET EACH AND EVERY LIMITATION OF THE
`ASSERTED CLAIMS
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`1.
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`Apple’s Definition of “User-Selectable Symbols” Does Not Establish
`That Poulin Discloses This Limitation
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`Apple asserts that Poulin meets the limitation of “user-selectable symbols” because
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`Poulin discloses “that users may exchange such communications by interacting with those map
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`displays, discussing communications ‘with other subscribers in their group via text messages
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`over the web-based display or their wireless device.” Dkt. 265 at 10.
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` However, Dr. Clark’s opinion is not
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`supported by his citations to Poulin which simply states that subscribers may “obtain the location
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`and status of other subscribers using secure web-based map display” and “subscribers may
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`exchange communications with other subscribers in their group via text messages provided over
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`the web-based map display.” Dkt. 265-5 at ¶ 7. Nothing from Poulin, and particularly no
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`portion of Poulin as cited by Apple or Dr. Clark, indicates that the web-based display is
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`interactive or that the symbols are “user-selectable.” As AGIS argued in its briefing for this
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`motion, Poulin on its face describes symbols positioned on the map that are user-selectable as is
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`required. Dkt. 235 at 5. As a result, Apple fails to establish that there exists a genuine issue of
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`material fact.
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`2.
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`Apple Does Not Disclose Evidence Sufficient to Establish “User-
`Selectable Symbols” Were Obvious
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`Apple argues that AGIS does not address the obviousness argument and obviousness
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`combinations proffered by Dr. Clark and Apple. However, AGIS has correctly asserted that
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`Apple’s obviousness argument with regard to Poulin, including its opinion that it would have
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`Case 2:17-cv-00513-JRG Document 300 Filed 01/16/19 Page 4 of 9 PageID #: 19313
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`been obvious to a POSITA in view of Poulin, and obvious in light of Poulin in combination with
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`Altman, are silent with regard to “user-selectable.”
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` Therefore, Apple fails to assert any obviousness combination dependent on
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`Poulin to establish “user-selectable symbols” were obvious, and there exists no genuine issue of
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`material fact.
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`B.
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`THE FBCB2 SYSTEM DOES NOT MEET EACH AND EVERY
`LIMITATION OF THE ASSERTED CLAIMS
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`Apple argues that AGIS cannot establish that the FBCB2 devices lack access to the IP
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`addresses of other FBCB2 devices, as is required by the asserted claims. However, Apple has
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`failed to establish that the FBCB2 devices lack access to the IP addresses of the recipient
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`devices. Apple attempts to distinguish between the FBCB2 devices and the servers as alleged in
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`Dr. Siegel’s report; Dr. Siegel himself has proffered a previously-undisclosed theory of
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`“dynamically electing servers.” Under Dr. Siegel’s theory, servers could be “dynamically”
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`selected from the FBCB2 devices. See Dkt. 235-4 at ¶¶ 71, 100, 104, 164, 168, 183, 219, 235,
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`243, 265, 273, 418, 470. Dr. Siegel attempts to rely on his “dynamically electing servers’ to
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`establish that the FBCB2 devices disclose the server limitations and simultaneously establish that
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`the devices do not require access to the IP addresses of other devices. Dr. Siegel cannot
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`distinguish the FBCB2 servers from the FBCB2 devices, while proffering that the FBCB2
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`system permits the devices to become servers. See e.g., Dkt. 235-4 at ¶ 104 (“[T]here was not a
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`single, static server designation in FBCB2 as there typically is in an office or consumer computer
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`network. Instead, FBCB2 devices were programmed to collaborate and dynamically select one
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`Case 2:17-cv-00513-JRG Document 300 Filed 01/16/19 Page 5 of 9 PageID #: 19314
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`of their number to act as the server. . . . Thus, a given FBCB2 device might use one or more
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`servers during the course of a given operation.”). Apple introduces ambiguity into its argument
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`by stating, “even if an FBCB2 device acting as a server had access to the IP addresses of the
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`devices it was serving, it does not follow that the FBCB2 device would have access to the IP
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`addresses that are part of its group” because the FBCB2 system permits devices outside of its
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`“group” to become a server. Dkt. 265 at 17. If a device outside of a group has access to the IP
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`addresses of other devices, a device within a group would have the same or similar functionality,
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`unless Dr. Siegel is now asserting that each and every FBCB2 device has different functionality
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`simply because they are within or outside of a group. Additionally, Dr. Siegel has proffered that
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`the FBCB2 permits multiple devices in its system to act as servers. Dkt. 265-7 at ¶ 104. It does
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`not follow that the system’s ability to have devices outside of the group to serve as a server does
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`not preclude a device serving as a server to have access to the IP addresses of all devices within
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`its group. Further, Apple does not address AGIS’s assertion that there is no evidence within
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`Dr. Siegel’s report or testimony stating that access to IP addresses is precluded.
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`Apple attempts to distinguish Cheese Systems by stating that “Cheese Systems does not
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`stand for the proposition that the phrasing of a description of prior art justifies granting summary
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`judgment of no invalidity. . . [and] [t]o the contrary, the panel in Cheese Systems affirmed the
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`lower court’s decision to grant summary judgment of no invalidity.” Dkt. 265 at 14. While
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`Apple is correct that the Court affirmed the lower court’s finding of summary judgment of no
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`invalidity, Apple misreads the holding of the case. In Cheese Systems, the Court affirmed the
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`lower court’s finding of no invalidity because the allegedly invalidating prior art references “say
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`nothing about reorienting the panels.” Cheese Sys., Inc. v. Tetra Pak Cheese & Powder Sys.,
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`Inc., 725 F.3d 1341, 1351 (Fed. Cir. 2013). While the appellant argued that a person of ordinary
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`Case 2:17-cv-00513-JRG Document 300 Filed 01/16/19 Page 6 of 9 PageID #: 19315
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`skill in the art would read the language “can be arranged” as disclosing reorienting the panels,
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`the Court found its argument unconvincing. Id. Like Cheese Systems and contrary to Apple’s
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`argument, this is similar to the FBCB2 system where Dr. Siegel’s opinion that the FBCB2
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`devices do not need to know the IP addresses of other devices does not preclude access. Further,
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`Apple’ relies on Dr. Siegel’s explanations that the FBCB2 devices do not need to know the IP
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`addresses of other devices which is supported solely by his own explanations of the FBCB2
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`system and his own testimony.
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`Accordingly, because there can be no dispute that the alleged FBCB2 system permitted
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`devices to access each other’s IP addresses, in direct contravention of the claim limitation, and
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`because there is no admissible evidence to the contrary, summary judgment should be granted.
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`III. CONCLUSION
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`For the foregoing reasons, AGIS respectfully requests that the Court grant its Motion for
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`Partial Summary Judgment of No Invalidity.
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`Dated: January 14, 2019
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`BROWN RUDNICK LLP
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` /s/ Alfred R. Fabricant
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Lawrence C. Drucker
`NY Bar No. 2303089
`Email: ldrucker@brownrudnick.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@brownrudnick.com
`Alessandra C. Messing
`NY Bar No. 5040019
`Email: amessing@brownrudnick.com
`Shahar Harel
`NY Bar No. 4573192
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`5
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`Case 2:17-cv-00513-JRG Document 300 Filed 01/16/19 Page 7 of 9 PageID #: 19316
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`Email: sharel@brownrudnick.com
`John A. Rubino
`NY Bar No. 5020797
`Email: jrubino@brownrudnick.com
`Enrique W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@brownrudnick.com
`Daniel J. Shea, Jr.
`NY Bar No. 5430558
`Email: dshea@brownrudnick.com
`Justine Minseon Park
`NY Bar No. 5604483
`Email: apark@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
`
`Samuel F. Baxter
`Texas Bar No. 01938000
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`Texas State Bar No. 24012906
`Email: jtruelove@mckoolsmith.com
`McKOOL SMITH, P.C.
`104 East Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: 903-923-9000
`Facsimile: 903-923-9099
`
`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT LLC
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`Case 2:17-cv-00513-JRG Document 300 Filed 01/16/19 Page 8 of 9 PageID #: 19317
`Case 2:17-cv-00513-JRG Document 300 Filed 01/16/19 Page 8 of 9 PageID #: 19317
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`Case 2:17-cv-00513-JRG Document 300 Filed 01/16/19 Page 9 of 9 PageID #: 19318
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on January 14, 2019, all counsel of record who are
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`deemed to have consented to electronic service are being served with a copy of this document via
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`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Alfred R. Fabricant
`Alfred R. Fabricant
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