Case 2:17-cv-00514-JRG Document 124-20 Filed 01/28/19 Page 1 of 4 PageID #: 8680
`Case 2:17-cv-00514-JRG Document 124-20 Filed 01/28/19 Page 1 of 4 PageID #: 8680
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` EXHIBIT 18
`EXHIBIT 18
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`Case 2:17-cv-00514-JRG Document 124-20 Filed 01/28/19 Page 2 of 4 PageID #: 8681
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`VINCENT J. RUBINO III
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`direct dial: 212-209-4974
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`fax: 212-209-4801
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`vrubino@brownrudnick.com
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`November 28, 2018
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`VIA EMAIL (MBernstein@perkinscoie.com)
`Matthew C. Bernstein
`Perkins Coie
`11988 El Camino Real
`Suite 350
`San Diego, CA 92130-2594
`
`RE: AGIS Software Development, LLC v. HTC Corporation, Case No. 2:17-cv-00514 (E.D. Tex.)
`(Lead Case)
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`Dear Matthew,
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`I write in response to HTC Corporation’s (“HTC”) letter dated November 13, 2018 regarding HTC’s
`request to AGIS to stipulate to non-infringement of the ’970 patent. As I communicated on the phone
`earlier this week, AGIS does not agree to stipulate to non-infringement of the ’970 patent and maintains
`that it has a good faith basis to continue to assert the ’970 patent against HTC.
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`First, AGIS notes that HTC’s letter does not challenge that the accused applications, Find My Device and
`Android Device Manager, meet the limitations of the ‘970 patent.1
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`Second, HTC appears to argue that it cannot be a direct infringer because, according to HTC, the HTC
`Accused Devices do not have the “accused Google-made applications, Find My Device and Device
`Manager.” HTC’s statement in its letter are inaccurate. The functionalities of Find My Device and
`Android Device Manager have been embedded within the Android operating system and/or Google’s
`Google Mobile Services (“GMS”) on HTC Accused Devices since at least 2013, most recently as part of
`the Google Play Protect suite which is mandatory on all Android devices. Android devices allow users to
`access the device finder functionality through native apps as well as through the Google Chrome browser
`and Google search bar, which are also provided with the Android operating system as part of GMS,
`which has been preinstalled on HTC devices, sold in the United States. HTC has directly infringed the
`’970 Patent at least as a result of selling its Android Smartphones, which include the GMS suite, in the
`United States prior to the filing of the complaint. Additionally, HTC has directly infringed the ’970
`Patent at least by testing the accused applications. See, e.g., Teng Dep. Tr. at 84:18-23.
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`Third, HTC incorrectly states that AGIS is prohibited from recovering for inducement because HTC was
`unaware of the asserted patents before filing of the complaint. HTC incorrectly argues that without pre-
`suit notice, “AGIS cannot conceivably argue that specific intent exists.” Pre-suit notice is not a
`requirement to find specific intent to induce infringement. Where Defendant has knowledge of the
`patent and specific intent to cause the acts constituting infringement, specific intent may be inferred from
`circumstantial evidence. Ricoh Co. v. Quanta Comput. Inc., 550 F.3d 1325, 1342 (Fed. Cir. 2008). For
`example, on HTC’s website, HTC directs customers to use Find My Device and Android Device
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`1 Nothing herein shall be construed as a waiver by AGIS of its rights or remedies, and AGIS specifically reserves
`its right to supplement its response to HTC’s Letter.
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`Case 2:17-cv-00514-JRG Document 124-20 Filed 01/28/19 Page 3 of 4 PageID #: 8682
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`Matthew C. Bernstein
`Page 2
`NOVEMBER 28, 2018
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`Manager to locate lost devices (See below); see also Teng Dep. Exhibits 12-30.2 Indeed, HTC has no
`basis to challenge post-complaint inducement, which is based on HTC’s continued encouragement of its
`customers’ direct infringement by use of the accused functionalities.
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`Teng Dep. Ex. 10
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`Teng Dep. Exhibit 11
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`2 “Evidence of active steps taken to induce infringement, such as advertising an infringing use, can support a
`finding of an intention for the product to be used in an infringing manner.” DSU Med. Corp. v. JMS Co., 471 F.3d
`1293, 1305 (Fed. Cir. 2006).
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`Case 2:17-cv-00514-JRG Document 124-20 Filed 01/28/19 Page 4 of 4 PageID #: 8683
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`Matthew C. Bernstein
`Page 3
`NOVEMBER 28, 2018
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`Teng Dep. Exhibit 12
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`Moreover, HTC continues to directly infringe the ’970 Patent and to actively induce infringement of the
`‘970 patent, at least by causing devices and/or users of the devices to update to newer versions of
`Android OS and the Accused Applications. See Dep. Tr. of Teng 20:22-21:23; 26:3-9; 28:4-24; 29:18-
`30:15; 30:25-32:6; HTC U11 User Guide 63-65; https://www.htc.com/us/support/updates.aspx. Indeed,
`this post-filing inducement (including upgrades to older devices) applies to the same products that AGIS
`has alleged infringe due to HTC’s pre-suit sales.
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`We are available to confer regarding these issues on December 3, 2018.
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`Sincerely,
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`BROWN RUDNICK LLP
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`Vincent J. Rubino III
`cc: Counsel of Record
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