Case 2:17-cv-00513-JRG Document 313 Filed 01/22/19 Page 1 of 7 PageID #: 19572
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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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`§
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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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`§
`§
`§
`§
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S
`SUR-REPLY TO APPLE INC.’S REPLY IN SUPPORT OF ITS
`MOTION FOR SUMMARY JUDGMENT OF NO INFRINGEMENT
`AND NO DAMAGES FOR FOREIGN USES (DKT. 230)
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`
`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.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`Case No. 2:17-CV-0513-JRG
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`APPLE, INC.,
`
`
`Defendant.
`
`Case No. 2:17-CV-0516-JRG
`(CONSOLIDATED CASE)
`
`JURY TRIAL DEMANDED
`
`§
`§
`§
`§
`
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S
`SUR-REPLY TO APPLE INC.’S REPLY IN SUPPORT OF ITS
`MOTION FOR SUMMARY JUDGMENT OF NO INFRINGEMENT
`AND NO DAMAGES FOR FOREIGN USES (DKT. 230)
`
`
`
`
`
`
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`Case 2:17-cv-00513-JRG Document 313 Filed 01/22/19 Page 2 of 7 PageID #: 19573
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`Plaintiff AGIS Software Development LLC (“AGIS”), by and through its undersigned
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`counsel, hereby submits this sur-reply in opposition of Apple Inc.’s Motion for Summary
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`Judgment of No Infringement and No Damages for Foreign Uses (Dkt. 230) (the “Motion”).
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`Regarding the method claims, Apple incorrectly alleges that certain steps are performed
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`outside the United States. Dkt. 279. However, every step in the method claims at issue is
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`performed inside the United States. Apple does not directly address AGIS’s statements that the
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`steps of the methods claims are performed by Apple servers in the United States. Instead, Apple
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`focuses only on alleged functionality of user devices which are not claimed steps. Dkt. 279 at 3-
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`4. Apple does not identify a single claimed step that is performed by these devices. Instead,
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`Apple focuses on the “configured” claim terms. However, the “configured” claim language
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`nonetheless relates to limitations on how the server performs a step, not on device-steps.
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`Apple also argues that because control/beneficial use of the system invoked is
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`exercised/obtained outside the United States, the use of the system takes place outside the United
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`States, and it therefore does not infringe. Dkt. 279 at 3-4. However, Apple’s argument is
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`without merit because the use of the system claims at issue takes place in the United States
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`where the control is exercised and benefit is obtained. Apple relies solely on the deposition
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`testimony of Mr. Ratliff1 and Mr. McAlexander. Dkt. 230 at 8-9.
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` Apple’s allegation that “AGIS’s experts readily concede” or that “both parties’
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`1 AGIS notes that Apple relies heavily on the deposition testimony of Mr. Ratliff, AGIS’s damages expert, to
`establish that the use of the system does not infringe.
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`Case 2:17-cv-00513-JRG Document 313 Filed 01/22/19 Page 3 of 7 PageID #: 19574
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`experts agree” control or benefit is exercised/obtained at the user’s location is misleading. See
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`Dkt. 230 at 5. Both experts responded to Apple’s statements regarding the control of and benefit
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`from use of the apps, not the system. Dkt. 230 at 8-9. Second, AGIS does not dispute that a
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`benefit may accrue to the users of the apps. However, the benefit of the system is where the
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`servers are located. Additionally, as Apple has stated, the determination of use of the claimed
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`system is where “the system as a whole it put into service, i.e., the place where control of the
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`system is exercised and beneficial use of the system is obtained.” Dkt. 230 at 5. Control is
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`exercised and beneficial use of the system is obtained where the servers are located—in the
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`United States, not where the users are located.
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`Finally, Apple alleges that it may operate some servers outside the United States. Dkt.
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`230 at 6-7. However, Apple’s assertions are inconsistent with the facts raised by AGIS that
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`demonstrate that all of the accused Apple servers are located within the United States.
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` Dkt. 256-9. Apple’s First Supplemental Reponses to AGIS Software
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`Development LLC’s First Set of Interrogatories, No. 9, dated August 8, 2018. Apple made no
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`move to amend its response with additional information, nor did it dispute this fact in its reply to
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`the motion.
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`2
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`Case 2:17-cv-00513-JRG Document 313 Filed 01/22/19 Page 4 of 7 PageID #: 19575
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`In moving for summary judgment, Apple bears the burden of showing that there is “no
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`genuine dispute as to any material fact.” Fed. R. Civ. P. 56(1); Celotex Corp. v. Catrett, 477
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`U.S. 317, 322 (1986). Here, Apple has not shown there is no genuine dispute as to any material
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`facts which precludes a finding of summary judgment.
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`For the foregoing reasons, AGIS respectfully requests that the Court deny Apple’s
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`Motion for Summary Judgment of No Infringement and No Damages for Foreign Uses.
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`Dated: January 18, 2019
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`BROWN RUDNICK LLP
`
` /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
`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
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`3
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`Case 2:17-cv-00513-JRG Document 313 Filed 01/22/19 Page 5 of 7 PageID #: 19576
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`
`
`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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`4
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`Case 2:17-cv-00513-JRG Document 313 Filed 01/22/19 Page 6 of 7 PageID #: 19577
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`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
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`The undersigned certifies that the foregoing document is authorized to be filed under seal
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`pursuant to the Protective Order entered in this case.
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`/s/ Alfred R. Fabricant
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`
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` Alfred R. Fabricant
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`5
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`Case 2:17-cv-00513-JRG Document 313 Filed 01/22/19 Page 7 of 7 PageID #: 19578
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on January 18, 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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