Case 2:17-cv-00513-JRG Document 74 Filed 01/05/18 Page 1 of 11 PageID #: 1570
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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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`
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`Plaintiff,
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`v.
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`HUAWEI DEVICE USA INC., HUAWEI
`DEVICE CO., LTD. AND HUAWEI DEVICE
`(DONGGUAN) CO., LTD.
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`Defendants.
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`LEAD CASE NO. 2:17-cv-513-JRG
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`JURY TRIAL DEMANDED
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`DEFENDANTS’ REPLY TO PLAINTIFF AGIS SOFTWARE DEVELOPMENT, LLC’S
`RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE
`TO THE NORTHERN DISTRICT OF CALIFORNIA
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`Case 2:17-cv-00513-JRG Document 74 Filed 01/05/18 Page 2 of 11 PageID #: 1571
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`TABLE OF CONTENTS
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`Page
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`I.
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`INTRODUCTION .............................................................................................................. 1
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`II.
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`NDCA IS CLEARLY A MORE CONVENIENT FORUM ............................................... 1
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`Case 2:17-cv-00513-JRG Document 74 Filed 01/05/18 Page 3 of 11 PageID #: 1572
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`CASES
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`TABLE OF AUTHORITIES
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`Page(s)
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`Advanced Ground Information Sys., Inc. v. Life360, Inc.,
` No. 14-cv-80651, 2015 WL 11401854 (S.D. Fla. Dec. 1, 2015) ..............................................1
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`Dainippon Screen Mfg. Co., Ltd. v. CFMT, Inc.,
`142 F.3d 1266 (Fed. Cir. 1998)..................................................................................................4
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`Digital Reg of Tex. LLC v. Adobe Sys. Inc.,
`No. 6:11-cv-305, 2012 WL 12895348 (E.D. Tex. Mar. 28, 2012) ............................................3
`
`Groupchatter, LLC v. Itron, Inc.,
`No. 6:15-cv-900 JRG-JDL, 2016 WL 2758480 (E.D. Tex. May 12, 2016) ..............................3
`
`In re EMC Corp.,
`501 F. App’x 973 (Fed. Cir. 2013) ............................................................................................3
`
`In re Hoffmann-La Roche Inc.,
`587 F.3d 1333 (Fed. Cir. 2009)..................................................................................................5
`
`In re Morgan Stanley,
`417 F. App’x 947 (Fed. Cir. Apr. 6, 2011) ................................................................................5
`
`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) .....................................................................................................4
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`Rotatable Techs., LLC v. Lennox Indus., Inc.,
`No. 2:13-cv-00110-JRG, D.I. 19 (E.D. Tex. Mar. 7, 2014) .......................................................4
`
`Shoemake v. Union Pacific R.R. Co.,
`233 F. Supp. 2d 828 (E.D. Tex. 2002) .......................................................................................4
`
`Zenith Elecs. LLC v. Sony Corp.,
`No. 5:10–CV–184–DF, 2011 WL 13217851 (E.D. Tex. Apr. 25, 2011) ..................................4
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`Case 2:17-cv-00513-JRG Document 74 Filed 01/05/18 Page 4 of 11 PageID #: 1573
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`INTRODUCTION
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`I.
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`In opposing transfer, AGIS does not dispute the following facts demonstrating that the
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`Northern District of California (NDCA) is the more convenient forum: (1) AGIS was formed in
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`anticipation of litigation to manufacture venue in this District; (2) Huawei’s relevant operations
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`and evidence are all located in California or on the West Coast; (3) Google, whose software is
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`the only identified basis for AGIS’s claims, is located in NDCA and its evidence is located in
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`that district; and (4) nearly all known party witnesses and documents for both AGIS and Huawei
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`are located outside this District. Accordingly, the private factors clearly favor transfer.
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`Instead, AGIS argues that this Court should refuse transfer because this case “really” is
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`about the physical devices sold by Huawei, not Google’s software. AGIS’s own infringement
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`contentions – which only describe the operation of Google’s software – contradict this claim.
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`AGIS also argues that it has significant contacts with this District, but in so doing merely reveals
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`that its business operations are based in Florida and any witnesses or documents in this District
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`are either irrelevant to this case and/or moved to this District to manipulate venue.
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`AGIS’s argument regarding judicial economy fares no better. AGIS claims that because
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`it has filed multiple lawsuits in this District at the same time, it would be more convenient and
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`efficient for all of the cases to remain here. AGIS’s argument turns venue analysis on its head,
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`and suggests that AGIS should be allowed to proceed in an improper and inconvenient forum
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`simply because it has sued multiple defendants in the wrong place.1 That is not the law.
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`II.
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`NDCA IS CLEARLY A MORE CONVENIENT FORUM
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`Convenience of the Witnesses. NDCA is a more convenient forum for all known and
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`1 AGIS’s forum shopping is undoubtedly intentional as AGIS, Inc. unsuccessfully asserted
`related patents and was ordered to pay attorneys’ fees in Florida. Advanced Ground Information
`Sys., Inc. v. Life360, Inc., No. 14-cv-80651, 2015 WL 11401854 (S.D. Fla. Dec. 1, 2015).
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`likely third-party witnesses, particularly Google. AGIS does not contest that Huawei has
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`identified key Google witnesses and documents within NDCA.2 Instead, AGIS asserts that its
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`infringement claims are based on Huawei’s hardware and that information regarding the
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`function of Google’s software is publicly available. 3 (D.I. 56 at 1, 5-6.) Neither is true. AGIS
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`mentions Google no less than 54 times in its Amended Complaint, and its claims require only a
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`generic “device” with standard smartphone attributes, e.g., “display.” (D.I. 20.) Indeed, the only
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`particularized functionality identified in its infringement contentions are two Google software
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`applications – Find My Device and Location Sharing through Google maps and other
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`applications. (Lee Decl., Ex. 1).4 AGIS’s initial disclosures expressly state that “the Huawei
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`Accused Products infringe [the Patents-In-Suit] because they include, among other things, at
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`least the features implemented in [the accused Google applications]” and that the devices are
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`“programmed, at least through . . . Google Maps, and/or Find My Device, to facilitate the
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`communication of location information.” (Id., Ex. 2 at 13-19 (emphasis added).) AGIS cannot
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`base its entire case on Google’s software and now claim that Google’s witnesses are irrelevant.
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`Relevant party witnesses likewise are not located in this District, and are primarily
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`located in or near NDCA. In its moving papers, Huawei demonstrated that its relevant business
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`operations for the accused functionality are in California and that its two party witnesses – Yao
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`2 AGIS also speculates that Google’s Austin office -- located outside this District -- has
`personnel with information relevant to its infringement claims. To the contrary, there are no
`relevant Google witnesses in Austin for the Google functionality identified in AGIS’s
`infringement contentions. (Oplinger Reply Decl., ¶ 2; Luh Reply Decl., ¶ 2.)
`3 AGIS’s assertions that mobile carriers (such as AT&T, Sprint and Verizon) “will provide
`information about the value of the accused [Google] software” (D.I. 56 at 6, 13) is self-serving
`speculation. Such carriers have no responsibility for the development and maintenance of those
`applications, and AGIS offers zero proof to suggest otherwise.
`4 AGIS’s argument that its contentions “rely only on publically available open source code or
`public APIs” (D.I. 56 at 9) is a misleading and incorrect. The supporting Google declarations
`make clear that the accused applications are not open source but rather highly confidential and
`non-public. (Oplinger Reply Decl., ¶ 3; Luh Reply Decl., ¶ 3.)
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`Wang and Wen Wen – are located in NDCA and Washington, respectively. (See D.I. 36-3.)
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`AGIS speculates that Huawei’s Plano facility has relevant witnesses but offers no credible
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`evidence to support that speculation.5 Even if there were relevant witnesses in Plano, at one
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`point in the past, because it is not true today, that fact is irrelevant to the transfer analysis. See In
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`re EMC Corp., 501 F. App’x 973, 976 (Fed. Cir. 2013) (deciding transfer motion based upon
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`“‘the situation which existed when suit was instituted’”). Moreover, Huawei’s advertisement of
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`a job opening6 at its Plano facilities is similarly irrelevant to the transfer analysis. See Digital
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`Reg of Tex. LLC v. Adobe Sys. Inc., No. 6:11-cv-305, 2012 WL 12895348 at *3 & n.1 (E.D. Tex.
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`Mar. 28, 2012) (job posting for a prospective position in Texas that did not exist when the
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`complaint was filed does not create a relevant witness for transfer analysis).
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`AGIS’s opposition also proves that its party witnesses are located outside this District.
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`(D.I. 56 at 4-5; D.I. 56-1.) These witnesses’ alleged willingness to travel to Texas “carries little
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`weight” and does not negate the inconvenience for Defendants’ witnesses. Groupchatter, LLC v.
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`Itron, Inc., No. 6:15-cv-900 JRG-JDL, 2016 WL 2758480, at *4 (E.D. Tex. May 12, 2016).
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`Indeed, AGIS seeks to anchor this case in EDTX by identifying witnesses that are
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`effectively irrelevant to this case and the transfer analysis. For example, AGIS identifies Eric
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`Armstrong as a former AGIS, Inc. software developer who: (1) played a “crucial role in
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`developing” the LifeRing and ASSIST product solutions for AGIS, Inc.; and (2) possesses
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`knowledge about the “inventions covered by the Patents-in-suit that will be relevant to this
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`action.” (D.I. 56-1, ¶¶ 15-16; see also D.I. 56 at 4-5.) But, AGIS’s infringement contentions
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`5 Contrary to AGIS’s assertions that Huawei USA employs “several hundred workers” at its
`Plano office, Huawei USA currently has only 46 employees at that location. (Zeng Reply Decl.,
`¶ 3.)
`6 The job posting identified by AGIS seeks a test engineer (not a research and development
`engineer as claimed by AGIS) for functions not relevant to AGIS’s asserted claims. (D.I. 56-13.)
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`confirm that it “does not intend to rely on the assertion that its own apparatuses . . . practice the
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`claimed inventions,” meaning Mr. Armstrong’s development efforts related to LifeRing and
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`ASSIST are effectively immaterial to this case.7 (Lee Decl., Ex. 1 at 14 (emphasis added).) Mr.
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`Armstrong also is not a named inventor on the Patents-In-Suit, and thus cannot possess more
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`relevant knowledge regarding the claimed inventions than the inventors themselves.8 Similarly,
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`Mr. Sandel Blackwell, the President of AGIS Inc. working from AGIS Inc. offices in Kansas and
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`Florida, is alleged to have knowledge regarding “the development of the software included in the
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`LifeRing and ASSIST solutions,” which are irrelevant to this case. (D.I. 56-1, ¶¶ 15-18; see also
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`D.I. 56 at 4-5.) David Sietsema’s relevance to this case is similarly tethered to the irrelevant
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`LifeRing and ASSIST products for AGIS, Inc. and, regardless, is not in this District. See D.I.
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`56-1, ¶ 17; D.I. 56 at 4-5; Rotatable Techs., LLC v. Lennox Indus., Inc., No. 2:13-cv-00110-JRG,
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`D.I. 19 (E.D. Tex. Mar. 7, 2014).9
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`Finally, AGIS’s arguments regarding the shortest, straight-line distance and inevitable
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`travel for any Huawei witnesses from China are legally flawed. (D.I. 56 at 11-12.) Controlling
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`precedent directs courts to consider actual travel logistics, including airplane flight times – and
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`not distance-as-the-crow-flies. See In re Volkswagen AG, 371 F.3d 201, n.3 (5th Cir. 2004).
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`7 As a newly-formed patent assertion entity, any argument that this statement only applies to
`products from AGIS Software Development, LLC and not to AGIS, Inc. should not be credited.
`AGIS should not be able to rely upon AGIS, Inc.’s products to oppose transfer, while using its
`corporate form to shield itself from the requirements of PLR 3-1(f), particularly where the two
`entities are admittedly related and share many of the same employees. See Dainippon Screen
`Mfg. Co., Ltd. v. CFMT, Inc., 142 F.3d 1266, 1271 (Fed. Cir. 1998); see also D.I. 36-7, ¶¶2-6,
`10, 13 & Exs. 1-5, 9, 11. In fact, AGIS consistently refers to AGIS, Inc.’s employees as party
`witnesses throughout its opposition brief. (See D.I. 56 at 4, 11 (referring to Mr. Sietsema).)
`8 Indeed, Mr. Armstrong was not disclosed and did not testify in previous litigation involving
`related patents and the same AGIS product solutions. (Clark Decl., ¶¶ 3-4 & Exs. A-B.)
`9 Additionally, AGIS cannot bolster its connections to this District by hiring a local technical
`expert, Mr. McAlexander, who, at this early stage, is “unlikely to have expended a great deal of
`effort on [his] testimony in this case.” See Shoemake v. Union Pacific R.R. Co., 233 F. Supp. 2d
`828, 833 (E.D. Tex. 2002).
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`Moreover, courts in this District have refused to disregard “that [Asia] is closer to [NDCA] than
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`[EDTX]” in the transfer analysis. See Zenith Elecs. LLC v. Sony Corp., No. 5:10–CV–184–DF,
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`2011 WL 13217851, at *8 (E.D. Tex. Apr. 25, 2011).
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`Location of Evidence. AGIS’s lease on its Marshall office commenced less than three
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`weeks before this action (see D.I. 56-1, ¶ 9), and thus any evidence was clearly moved there in
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`anticipation of litigation and is irrelevant to transfer.10 See In re Hoffmann-La Roche Inc., 587
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`F.3d 1333, 1336-37 (Fed. Cir. 2009). By contrast, Huawei’s relevant documents, and those of
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`key third-party witness Google, are located in NDCA and California. (See D.I. 36 at 4-7.)
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`Compulsory Process. AGIS additionally argues that this factor disfavors transfer
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`because there are purportedly relevant witnesses from mobile carriers such as Verizon. (D.I. 56
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`at 6, 13.) With the exception of Mr. Armstrong, none of AGIS’s purported third-party witnesses
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`are located in this District. And, as mentioned above, Mr. Armstrong’s relevance to this case is
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`largely speculative. By contrast, NDCA does have absolute subpoena power over the third-party
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`witnesses identified by Huawei, which AGIS does not dispute. (D.I. 36 at 11-12.)
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`Judicial Economy. AGIS argues that transfer should be denied in the interest of judicial
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`economy because it has filed other infringement actions in this District. This Court and the
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`Federal Circuit repeatedly have “rejected arguments that the preservation of judicial economy
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`should preclude transfer to a far more convenient venue” when other factors weigh in favor of
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`transfer. In re Morgan Stanley, 417 F. App’x 947, 949-50 (Fed. Cir. Apr. 6, 2011). More
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`importantly, the “efficiencies” cited by AGIS exist only because AGIS filed this and other
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`lawsuits in this District without any basis to do so. Every defendant sued by AGIS has or will
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`10 As recently as 2014, Mr. Beyer admitted that nearly all of AGIS Inc.’s documents, including
`related technical and financial documents, were located in Florida and not in Kansas. (Lee Decl.,
`Ex. 3, ¶¶ 8, 10, 12, 18.)
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`Case 2:17-cv-00513-JRG Document 74 Filed 01/05/18 Page 9 of 11 PageID #: 1578
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`seek transfer to NDCA.11 The rule AGIS urges here would lead to an absurdity -- any plaintiff
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`could sue any defendant anywhere, as long as that plaintiff sued enough people in the same
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`place, regardless of whether any of the defendants had a connection to the selected forum.
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`Dated: January 5, 2018
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`Respectfully submitted,
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`/s/ J. Mark Mann
`J. Mark Mann
`SBN: 12926150
`mark@themannfirm.com
`G. Blake Thompson
`SBN: 24042033
`blake@themannfirm.com
`MANN TINDEL THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`Tel: 903-657-8540
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`Michael A. Berta
`Michael.berta@apks.com
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`Three Embarcadero Center
`10th Floor
`San Francisco, CA 94111-4024
`Tel: 415-471-3000
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`James S. Blackburn
`James.blackburn@apks.com
`Nicholas H. Lee
`Nicholas.lee@apks.com
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`777 South Figueroa Street
`44th Floor
`Los Angeles, CA 90017-5844
`Tel: 213-243-4000
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`
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`ATTORNEYS FOR DEFENDANTS
`HUAWEI DEVICE USA INC., HUAWEI
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`11 On information and belief, HTC Corporation intends to file a transfer motion this month.
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`Case 2:17-cv-00513-JRG Document 74 Filed 01/05/18 Page 10 of 11 PageID #: 1579
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`DEVICE CO., LTD., AND HUAWEI
`DEVICE CO, LTD., AND HUAWEI
`DEVICE (DONGGUAN) CO., LTD.
`DEVICE (DONGGUAN) CO, LTD.
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`Case 2:17-cv-00513-JRG Document 74 Filed 01/05/18 Page 11 of 11 PageID #: 1580
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on January 5, 2018, a true and correct copy of
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`the foregoing was served to the parties counsel of record via electronic mail pursuant to Local
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`Rule CV-5(d).
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`/s/ J. Mark Mann
`J. Mark Mann
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