Case 2:17-cv-00514-JRG Document 208 Filed 02/21/19 Page 1 of 7 PageID #: 18175
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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
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`
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`
`
`AGIS SOFTWARE DEVELOPMENT LLC’S RESPONSE IN
`OPPOSITION TO HTC CORPORATION’S SEALED
`MOTION FOR SUMMARY JUDGMENT
`OF NO WILLFUL INFRINGEMENT (DKT. 113)
`
`
`
`
`
`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
`
`
`
`
`
`
`AGIS SOFTWARE DEVELOPMENT LLC’S RESPONSE IN
`OPPOSITION TO HTC CORPORATION’S SEALED
`MOTION FOR SUMMARY JUDGMENT
`OF NO WILLFUL INFRINGEMENT (DKT. 113)
`
`
`
`
`
`Case 2:17-cv-00514-JRG Document 208 Filed 02/21/19 Page 2 of 7 PageID #: 18176
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`Plaintiff AGIS Software Development LLC (“AGIS”) respectfully submits this Response
`
`in Opposition to HTC Corporation’s (“HTC” or “Defendant”) Sealed Motion for Summary
`
`Judgment of No Willful Infringement (Dkt. 113).
`
`I.
`
`INTRODUCTION
`
`AGIS does not intend to assert at trial willful infringement. Because there is no case or
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`controversy regarding these issues, HTC’s motion should be denied.
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`II.
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`STATEMENT OF ISSUES TO BE DECIDED
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`1.
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`Whether HTC Corp. can be found to have willfully infringed a patent prior to suit
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`when it had no pre-suit knowledge of the asserted patents.
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`
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`Response: Whether HTC is entitled to judgment as a matter of law that it has willfully
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`infringed a patent prior to suit when it had no pre-suit knowledge of the asserted patents when
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`AGIS does not intend to present willful infringement at trial.
`
`2.
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`Whether HTC Corp. can be found to willfully infringe a patent where there is no
`
`evidence of egregious conduct, just a plaintiff listing synonyms for “egregious” without any
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`supporting evidence.
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`
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`Response: Whether HTC is entitled to judgment as a matter of law that it has not
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`willfully infringed a patent where there is no evidence of egregious conduct, just a plaintiff
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`listing synonyms for “egregious,” just a plaintiff listing synonyms for “egregious” without any
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`supporting evidence.
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`III. RESPONSE TO RECITATION OF UNDISPUTED FACTS
`
`1.
`
`AGIS alleges that HTC willfully infringed the asserted patents.
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`
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`Response: Disputed, however, AGIS does not intend to present a theory of pre-suit
`
`indirect infringement at trial.
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`
`
`
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`Case 2:17-cv-00514-JRG Document 208 Filed 02/21/19 Page 3 of 7 PageID #: 18177
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`2.
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`AGIS seeks treble damages under 35 U.S.C. § 284 for HTC’s alleged willful
`
`infringement.
`
`
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`Response: Disputed, however, AGIS does not intend to present a theory of pre-suit
`
`indirect infringement at trial.
`
`3.
`
`On May 18, 2018, HTC served Interrogatory No. 15 on AGIS, for which AGIS
`
`responded the following:
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`
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`Response: Undisputed.
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`
`
`
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`4.
`
`On August 17, 2018, AGIS provided supplemental responses to its interrogatory
`
`responses, but it did not supplement its responses to Interrogatory No. 15.
`
`
`
`Response: Undisputed.
`
`5.
`
`On November 21, 2018, counsel for HTC sent a letter to counsel for AGIS
`
`requesting that AGIS supplement its interrogatory responses, including Interrogatory No. 15.
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`
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`Response: Undisputed.
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`6.
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`AGIS supplemented its response to Interrogatory No. 15 as follows:
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`Response: Undisputed.
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`7. AGIS has provided no further supplemental responses to this interrogatory.
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`Response: Undisputed.
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`2
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`
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`Case 2:17-cv-00514-JRG Document 208 Filed 02/21/19 Page 4 of 7 PageID #: 18178
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`IV. ARGUMENT
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`HTC seeks summary judgment on issues that are not in dispute. AGIS does not contend
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`and will not allege at trial that HTC willfully infringes any claim of the Patents-in-Suit. HTC’s
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`motion for summary judgment seeks dispositive judgments on issues for which there is no
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`present case or controversy, and HTC cites to no case law holding that such relief is appropriate.
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`To the contrary, case law in this District indicates that courts should not grant summary
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`judgment on issues that are not to be presented at trial. See e.g., VirtnetX Inc. v. Apple Inc., 925
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`F. Supp. 2d 816, 849 (E.D. Tex. 2013) (rev’d, 767 F.3d 1308 (Fed. Cir. 2014)) on other grounds
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`(“The Court encourages and requires the parties to narrow their case for trial. Accordingly, the
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`Court will not penalize such attempts to narrow issues by entering judgment on issues not
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`presented at trial.”). HTC’s motion should, therefore, be denied as moot.
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`V.
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`CONCLUSION
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`For the foregoing reasons, HTC has failed to show good cause for its motion and AGIS
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`respectfully requests that the Court deny HTC’s Motion for Summary Judgment of No Willful
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`Infringement.
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`Dated: February 19, 2019
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`
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`
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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
`
`3
`
`
`
`Case 2:17-cv-00514-JRG Document 208 Filed 02/21/19 Page 5 of 7 PageID #: 18179
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`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
`Timothy J. Rousseau
`NY Bar No. 4698742
`Email: trousseau@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
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
`
`Samuel F. Baxter
`Texas State 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
`
`
`4
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`
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`Case 2:17-cv-00514-JRG Document 208 Filed 02/21/19 Page 6 of 7 PageID #: 18180
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`
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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
`
`
`
`
`
` Alfred R. Fabricant
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`
`
`
`
`5
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`Case 2:17-cv-00514-JRG Document 208 Filed 02/21/19 Page 7 of 7 PageID #: 18181
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`
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 19, 2019, all counsel of record who
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`are deemed to have consented to electronic service are being served with a copy of this document
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`via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
`
`
`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
`
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