Case 2:17-cv-00514-JRG Document 124-5 Filed 01/28/19 Page 1 of 6 PageID #: 8633
`Case 2:17-cv-00514-JRG Document 124-5 Filed 01/28/19 Page 1 of 6 PageID #: 8633
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`
` EXHIBIT 3
`EXHIBIT 3
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`Case 2:17-cv-00514-JRG Document 124-5 Filed 01/28/19 Page 1 of 6 PageID #: 8633
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` EXHIBIT 3
`EXHIBIT 3
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`Case 2:17-cv-00514-JRG Document 124-5 Filed 01/28/19 Page 2 of 6 PageID #: 8634
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT, LLC,
`
`
`
`Plaintiff,
`
`v.
`
`HTC CORPORATION,
`
`Defendant.
`
`CASE NO. 2:17-CV-0514-JRG
`(LEAD CASE)
`
`
`JURY TRIAL DEMANDED
`
`DEFENDANT HTC CORPORATION’S SECOND SET OF INTERROGATORIES TO
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT, LLC (NOS. 16-25)
`
`Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, Defendant HTC
`
`Corporation, (“HTC”) through its counsel, hereby requests that Plaintiff AGIS Software
`
`Development, LLC (“AGIS”) fully answer the following interrogatories within thirty (30) days
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`in writing, under oath, and in conformity with the Definitions and Instructions set forth below,
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`and afterwards supplement such interrogatory answers as may become necessary to comply with
`
`the requirements of Rule 26(e) of the Federal Rules of Civil Procedure.
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`DEFINITIONS
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`The following definitions shall apply throughout these interrogatories, regardless of
`
`whether upper or lower-case letters are used:
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`1. “AGIS Software Development, LLC,” “AGIS,” “You,” or “Your” refers to Plaintiff
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`AGIS Software Development, LLC, including without limitation all subsidiaries, parents,
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`affiliates, and all past or present directors, officers, attorneys, agents, representatives, employees,
`
`and consultants.
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`- 1 -
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`Case 2:17-cv-00514-JRG Document 124-5 Filed 01/28/19 Page 3 of 6 PageID #: 8635
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`a.
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`the specification of Documents shall be in sufficient detail to permit Defendant to
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`locate and identify records and to ascertain the answer as readily as could AGIS
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`(e.g., by production number);
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`b. AGIS shall make available any computerized information or summaries thereof
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`that it either has, or can adduce by a relatively simple procedure, unless these
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`materials are privileged or otherwise immune from discovery;
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`c. AGIS shall provide any relevant compilations, abstracts, or summaries in its
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`custody or otherwise readily obtainable by it, unless these materials are privileged
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`or otherwise immune from discovery; and
`
`d.
`
`to the extent not already produced, the Documents shall be made available for
`
`inspection and copying within thirty (30) days after service of the answers to this
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`interrogatory or on a date mutually agreed upon by Defendant and AGIS.
`
`INTERROGATORY NO. 16:
`
`INTERROGATORIES
`
`AGIS declared that the applications for each of the ’838, ’055, and ’251 patents were
`
`subject to the First-to-File provisions of the America Invents Act. See ’838 patent prosecution,
`
`App. No. 14/529978, April 25, 2016 Applicant Amendment at 15-16 (AGIS stated that “it is
`
`understood that the present application will be examined under the post-AIA, first-to-file
`
`provisions of the patent laws”); ’055 patent prosecution, App. No. 14/695233, October 30, 2015
`
`Applicant Amendment at 13-14 (AGIS stated that “it is understood that the present application
`
`will be examined under the post-AIA, first-to-file provisions of the patent laws.”); ’251 patent
`
`prosecution, App. No. 14/633804, November 13, 2015 Applicant Amendment at 10 (AGIS stated
`
`that “it is understood that the present application will be examined under the post-AIA, first-to-
`
`- 10 -
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`
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`Case 2:17-cv-00514-JRG Document 124-5 Filed 01/28/19 Page 4 of 6 PageID #: 8636
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`file provisions of the patent laws. See MPEP 2159.02 (March 2014).”). AGIS’s Supplemental
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`Responses to HTC’s 1st Set of Interrogatories, served on August 17, 2018, state that AGIS will
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`rely upon an invention date prior to September 21, 2004 for the ’838, ’055, and ’251 patents but
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`patents subject to the First-to-File provisions of the America Invents Act cannot claim earlier
`
`invention dates. State AGIS’s basis for claiming a pre-filing invention date for the ’838, ’055,
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`and ’251 patents in view of AGIS’s representation to the USPTO that the ’838, ’055, and ’251
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`patents are subject to the First-to-File provisions of the America Invents Act, which forbids
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`claiming a pre-filing invention date.
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`INTERROGATORY NO. 17:
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`Identify all communications made by any representative or individual associated with any
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`AGIS Company to any representative or individual associated with HTC Corporation or HTC
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`America, Inc. that pre-date June 21, 2017.
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`INTERROGATORY NO. 18:
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`Describe, in full, the date on which AGIS contends that HTC Corporation received notice
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`of each of the ’055, ’251, ’838, and ’970 patents, including: (a) the date of the notice; (b) the
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`form that the notice was in (e.g., whether it was a hand-delivered letter, an e-mail, or was made
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`verbally, etc.); (c) all documents reflecting the notice; (d) the person who received the notice; (e)
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`the person who sent the notice; (f) the patent identified in the notice; and (g) how the notice put
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`HTC Corporation on notice of an allegedly infringing act.
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`INTERROGATORY NO. 19:
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`AGIS has accused Find My Device and Device Manager (Find My Device’s predecessor)
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`of infringing the ’970 patent. Find My Device is not installed on any HTC Corporation-made
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`phone and Device Manager (Find My Device’s predecessor) and was only available from a
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`- 11 -
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`Case 2:17-cv-00514-JRG Document 124-5 Filed 01/28/19 Page 5 of 6 PageID #: 8637
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`Google owned and operated website accessible only via a web browser. Explain AGIS’s basis,
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`and identify all documents in support of AGIS’s basis, for alleging that HTC Corporation
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`directly infringes the ’970 patent.
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`INTERROGATORY NO. 20:
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`HTC Corporation does not make, use, offer to sell, or sell smartphones in the United
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`States or import smartphones into the United States. For each of the asserted claims of the ’055,
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`’251, ’838, and ’970 patents, separately identify the party or parties that AGIS contends directly
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`infringe each patent, and which activity or activities from 35 U.S.C. § 271(a) (i.e., “makes . . .
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`within the United States”, “uses . . . within the United States,” “offers to sell . . . within the
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`United States,” “sells . . . within the United States,” or “imports into the United States”)
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`constitute the infringing acts. Identify the documents that demonstrate these activities.
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`INTERROGATORY NO. 21:
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`Explain AGIS’s basis, and identify all documents in support of AGIS’s basis, for
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`contending that HTC Corporation induces others to infringe each of the ’055, ’251, ’838, and
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`’970 patents under 35 U.S.C. § 271(b), including an identification of the party or parties that
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`perform the alleged direct infringement and an identification of the activities conducted by HTC
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`Corporation that you claim demonstrate a specific intent of HTC Corporation to encourage direct
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`infringement, including HTC Corporation’s knowledge of the ’055, ’251, ’838, and ’970 patents,
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`knowledge that the induced acts constitute direct infringement of the ’055, ’251, ’838, and ’970
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`patents, and the affirmative steps taken by HTC Corporation to bring about direct infringement.
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`INTERROGATORY NO. 22:
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`Claims 1 and 54 of the ’838 patent require the following claim limitations:
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`- 12 -
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`
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`Case 2:17-cv-00514-JRG Document 124-5 Filed 01/28/19 Page 6 of 6 PageID #: 8638
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`INTERROGATORY NO. 25:
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`State the date on which AGIS contends that the hypothetical negotiation between AGIS
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`and HTC Corporation should take place and AGIS’s basis for choosing said date.
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`
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`Dated: November 7, 2018
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`Respectfully submitted,
`
`/s/ Miguel Bombach
`Matthew C. Bernstein, (Lead Attorney)
`CA State Bar No. 199240
`mbernstein@perkinscoie.com
`Miguel J. Bombach
`CA State Bar No. 274287
`mbombach@perkinscoie.com
`James Young Hurt (Pro Hac Vice)
`CA State Bar No. 312390
`jhurt@perkinscoie.com
`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130-2594
`Tel: (858) 720-5700
`Fax: (858) 720-5799
`
`Eric Findlay
`State Bar No. 00789886
`efindlay@findlaycraft.com
`FINDLAY CRAFT, P.C.
`102 N. College Ave., Suite 900
`Tyler, TX 75702
`Tel: (903) 534-1100
`Fax: (903) 534-1137
`
`ATTORNEYS FOR DEFENDANT
`HTC CORPORATION
`
`
`- 14 -
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