Case 2:17-cv-00514-JRG Document 126-6 Filed 01/28/19 Page 1 of 4 PageID #: 8804
`Case 2:17-cv-00514-JRG Document 126-6 Filed 01/28/19 Page 1 of 4 PageID #: 8804
`
`(cid:3)
`(cid:3)(cid:3)(cid:3)(cid:3)(cid:40)(cid:59)(cid:43)(cid:44)(cid:37)(cid:44)(cid:55)(cid:3)(cid:23)(cid:3)
`
`

`

`Case 2:17-cv-00514-JRG Document 126-6 Filed 01/28/19 Page 2 of 4 PageID #: 8805
`
`
`
`November 21, 2018
`
`Kyle R. Canavera
`KCanavera@perkinscoie.com
`D. +1.858.720.5782
`
`VIA EMAIL: VRUBINO@BROWNRUDNICK.COM
`
`Vincent J. Rubino
`Brown Rudnick LLP
`Seven Times Square
`New York, NY 10036
`
`Re: Case No. 2:17-CV-514 - Deficiencies in AGIS’s Responses to HTC’s First Set of
`Interrogatories and Other Discovery Obligations
`
`Dear Vincent:
`
`I write regarding deficiencies in AGIS’s responses to HTC’s First Set of Interrogatories
`
`(1–15). Despite our previous correspondence and AGIS’s supplemental responses, many of the
`responses remain deficient.
`
`AGIS has been aware of these deficiencies for over four months. On July 3, 2018, we
`
`sent a letter to you identifying these deficiencies. On August 17, AGIS provided supplemental
`responses, but those remain deficient. With fact discovery soon to close, AGIS must
`immediately supplement its interrogatory responses. Please confirm by Nov. 27 that AGIS will
`supplement.
`
`
`
`AGIS’s responses are deficient at least for the following reasons:
`
`
`
`
`
`
`
`Interrogatory No. 1 requests a mapping of AGIS’s embodying products to the asserted
`claims, on an element-by-element basis. Yet AGIS’s response states only that the
`“LifeRing products embody one or more claims of the patents-in-suit.” This does not
`identify the version of LifeRing, the implicated patents, or which claims and claim
`elements are practiced. AGIS has provided answers to similar interrogatories provided
`by Apple (e.g., pages 14-16 of Exhibit 29 of M. Beyer Deposition) and cannot refuse to
`answer HTC.
`
`Interrogatory No. 3 requests information about past valuations of the patents-in-suit, or
`related patents. AGIS provided no response to this interrogatory.
`
`Interrogatory No. 4 requests information about the marking of AGIS’s products. The
`response to this interrogatory directs attention to the website
`www.agisinc.com/about/patents. But the Internet Archive shows that this webpage did
`not exist prior to May 2017, while the patents in suit were issued many years prior. Thus,
`
`
`
`
`
`

`

`Case 2:17-cv-00514-JRG Document 126-6 Filed 01/28/19 Page 3 of 4 PageID #: 8806
`
`Vincent J. Rubino
`November 21, 2018
`Page 2
`
`
`
`
`
`
`
`
`
`this response does not come close to answering even the basic question of whether any
`products were marked during the life of the patents, much less the more detailed
`information requested by this interrogatory (e.g., products marked, periods of marking,
`manner of marking).
`
`Interrogatory No. 6 requests information about any claimed date of invention prior to the
`filing dates of the patents-in-suit. AGIS only responded by pointing to the application
`filings themselves. AGIS’s response purports to reserve the right to supplement the
`response with evidence of an earlier invention date “in the event that HTC contends any
`claims are invalid under pre-AIA 35 U.S.C. §§ 102(a) or (e).” HTC did exactly that with
`its invalidity contentions, served March 15, 2018. But AGIS has yet to supplement the
`information in this interrogatory response. As with Interrogatory No. 1, AGIS provided
`an answer to Apple, and cannot refuse to answer HTC.
`
`Interrogatory No. 12 requests information about products sold or licensed by AGIS,
`including first dates of disclosure, first dates of sale, and sales information. AGIS
`provided no response to this interrogatory.
`
`Interrogatory Nos. 13 and 14 request identification of how HTC allegedly practices single
`elements of the claims under suit. AGIS provided no response to these interrogatories
`other than to direct attention to the infringement contentions. But these interrogatories
`are narrowly focused on single elements, which AGIS’s infringement contentions do not
`sufficiently describe.
`
`Interrogatory No. 15 requests information about AGIS’s contention that HTC willfully
`infringed the asserted patents. Even though AGIS already has all of HTC’s emails
`produced in this case and has already deposed HTC’s witnesses, AGIS has provided no
`response to this interrogatory. The response states that “AGIS directs HTC to documents
`within its own possession.” But with fact discovery nearly closed, AGIS cannot possibly
`prove this theory at trial unless AGIS possesses evidence of HTC’s alleged willfulness.
`If AGIS holds no such evidence, then AGIS needs to state as such. In the alternative,
`HTC would be willing to accept a stipulation from AGIS that AGIS will no longer pursue
`a willful infringement claim.
`
`In addition, AGIS is under a continuing obligation to produce relevant, non-privileged
`
`information to HTC. AGIS is obligated to produce to HTC all materials that have been produced
`to defendants Apple Inc., Huawei Device Co. Ltd., Huawei Device USA Inc., Huawei
`Technologies USA, Inc., ZTE (TX), Inc., ZTE Corp., or ZTE (USA), Inc. in parallel cases 2:17-
`cv-513, 515–517. This includes supplementation of AGIS’s interrogatory responses which, as
`noted above, it has not done. AGIS is further obligated to produce any third-party documents
`produced to AGIS in any of the above-listed parallel cases, such as but not limited to prior art
`
`
`
`
`
`

`

`Case 2:17-cv-00514-JRG Document 126-6 Filed 01/28/19 Page 4 of 4 PageID #: 8807
`
`Vincent J. Rubino
`November 21, 2018
`Page 3
`
`documents and documents from Jim Fordyce, Mid Ocean Capital LLC, and Longford Capital.
`To the extent that any such documents have not been produced to HTC, they must be produced
`immediately.
`
`Finally, in case no. 2:17-cv-513 it appears that AGIS has settled its dispute with Huawei
`
`(D.I. 222), that AGIS has been served with expert opinions from Apple (D.I. 220), and that AGIS
`has produced a report for damages on Apple (id.). Immediately produce the settlement
`agreement and the expert opinion with its supporting documents that was served on AGIS by
`Apple. We are amenable, for the damages report submitted by AGIS to Apple, for AGIS to
`redact Apple-confidential information.
`
`Regards,
`
`/s/ Kyle R. Canavera
`
`Kyle R. Canavera
`
`cc:
`
`
`
`
`
`
`AGISLIT@BROWNRUDNICK.COM
`PerkinsServiceHTC-AGIS@PerkinsCoie.com
`BCraft@FindlayCraft.com
`EFindlay@FindlayCraft.com
`
`
`
`