Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 1 of 19 PageID #: 18197
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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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`Plaintiff,
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`v.
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`HTC CORPORATION,
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`Defendant.
`
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`Case No. 2:17-CV-0514-JRG
`(LEAD CASE)
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`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 DIRECT INFRINGEMENT (DKT. 116)
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`

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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 2 of 19 PageID #: 18198
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`I.
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`II.
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`III.
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`IV.
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`V.
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`TABLE OF CONTENTS
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`Page(s)
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`INTRODUCTION .............................................................................................................. 1
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`STATEMENT OF ISSUES TO BE DECIDED ................................................................. 1
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`UNDISPUTED FACTS ...................................................................................................... 2
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`A.
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`B.
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`Response to Recitation of Undisputed Facts .......................................................... 2
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`Counterstatement of Undisputed Facts ................................................................... 3
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`LEGAL STANDARD ......................................................................................................... 5
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`ARGUMENT ...................................................................................................................... 6
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`A.
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`A Genuine Dispute of Material Fact Exists as to whether HTC Corp.
`Imports Sells, and Offers for Sale the Accused Devices in the United
`States ....................................................................................................................... 6
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`1.
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`2.
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`3.
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`A genuine dispute exists as to whether HTC Corp. imports, sells,
`or offers the accused devices for sale, based on HTC Corp.’s
`prior admissions .......................................................................................... 6
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`A genuine issue exists as to whether HTC Corp.’s sales, offers,
`and imports of the accused devices to HTC America occurred
`within the United States .............................................................................. 7
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`A genuine issue exists as to whether HTC Corp. offers accused
`devices for sale to carriers and other customers in the United
`States ........................................................................................................... 9
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`B.
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`C.
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`A Genuine Dispute of Material Fact Exists as to whether HTC Corp.
`Uses the Accused Devices in the United States .................................................... 10
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`HTC America’s, Use, Sale, Offers for Sale, and Importation of the
`Accused Devices are all Imputed to HTC Corp.................................................... 11
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`VI.
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`CONCLUSION ................................................................................................................. 12
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 3 of 19 PageID #: 18199
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 4 of 19 PageID #: 18200
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`Plaintiff AGIS Software Development LLC (“AGIS”) respectfully submits this Response
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`in Opposition to HTC Corporation’s (“HTC Corp.” or “Defendant”) Sealed Motion for Summary
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`Judgment of No Direct Infringement (Dkt. 116).
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`I.
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`INTRODUCTION
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`A genuine issue of material fact exists as to whether HTC Corp. directly infringed both
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`the asserted systems and method claims of the patents-in-suit. Even setting aside HTC Corp.’s
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`past stipulation that it imports and sells the accused devices in the United States, AGIS has
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`presented evidence showing that HTC Corp’s sales, offers for sale, and imports of products
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`transferred to HTC America all take place in the United States. Further, HTC Corp.’s undisputed
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`representations to customers constitute an infringing offer to sell. There also remains a genuine
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`dispute as to whether HTC America employees, carrying out the steps alleged to infringe the
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`asserted method claims while “representing” HTC Corp in sales discussions infringe on HTC
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`Corp.’s behalf.
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`Finally, HTC America is a mere business conduit through which HTC Corp. sells the
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`accused products in the United States, without any independent corporate existence. A jury could
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`reasonably find that HTC America is HTC Corp.’s agent in re-selling, offering for sale,
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`importing, and using the accused products, such that HTC America’s acts of infringement are
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`imputed to HTC Corp. Thus, HTC Corp. further infringes both the systems and method claims
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`on this ground.
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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. directly infringes the method claims of the asserted patents,
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`when HTC Corp. does not make, use, sell, or offer to sell the accused devices within the United
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`States and does not import the accused devices into the United States.
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 5 of 19 PageID #: 18201
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`Response: Whether genuine issues of material fact exist as to whether HTC Corp. uses
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`the accused devices in the United States; Whether genuine issues of material fact exist as to
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`whether HTC Corp. testing procedures for the accused devices include running software in an
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`infringing manner; Whether a reasonable jury can conclude that HTC America is an agent of
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`HTC Corp. such that its admitted use of the accused devices in the United States is imputed to
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`HTC Corp.
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`2.
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`Whether HTC Corp. directly infringes the system and device claims of the
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`asserted patents, when HTC Corp. does not make, use, sell, or offer to sell the accused devices
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`within the United States and does not import the accused devices into the United States.
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`Response: Whether genuine issues of material fact exist as to whether HTC Corp. has
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`sold accused devices in the United States; Whether genuine issues of material fact exist as to
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`whether HTC America takes title to the accused devices prior to their entry into the United
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`States; Whether a reasonable jury can conclude that HTC America is an agent of HTC Corp.
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`such that its admitted importation and sale of the accused devices in the United States is imputed
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`to HTC Corp.
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`III. UNDISPUTED FACTS
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`A.
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`Response to Recitation of Undisputed Facts
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`It is undisputed that AGIS asserts the ‘970, ‘838, 251, and ‘055 patents in this case. It is
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`undisputed that AGIS alleges HTC Corp. directly infringes the asserted systems and apparatus
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`claims by importing, selling, and offering the accused devices for sale, in the United States. It is
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`undisputed that AGIS alleges HTC Corp. directly infringes the asserted method claims by using
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`the accused devices in the United States.
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`It is undisputed that HTC America is HTC Corp.’s subsidiary in the United States. AGIS
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`disputes HTC Corp.’s statement that HTC America “handles” the marketing and customer
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 6 of 19 PageID #: 18202
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`relationships for HTC Smartphones in the United States. AGIS further disputes HTC Corp.’s
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`statement that it “provides only high-level guidance to HTC America regarding the content of
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`marketing efforts and the amount to spend.” AGIS disputes HTC Corp.’s statement that the only
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`direct sales channels over the last six years for accused devices in the United States were online
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`sales at HTC America’s website, to Amazon.com, and to cellular carriers.
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`It is undisputed that HTC Corp. has a “testing team” for the accused devices, and that
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`HTC Corp.’s engineers performed testing of the accused devices. AGIS disputes HTC Corp.’s
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`statement that all testing was done in Taiwan. AGIS further disputes HTC Corp.’s statement that
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`HTC Corp.’s witnesses were not questioned as to where testing was performed.
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`B.
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`Counterstatement of Undisputed Facts
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`HTC Corp. has previously stipulated that it imports, sells, and uses a number of the
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`Accused Devices in the United States. See Certain Personal Data and Mobile Communications
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`Devices and Related Software, No. 337-TA-710, 6-8 (ITC, July 15, 2011) (Initial Determination)
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`(“Respondents have stipulated to the fact that they have imported into the United States, sold for
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`importation into the United States, and/or sold within the United States after importation the
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`accused personal data and mobile communications devices and related software . . . HTC [has]
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`also stipulated that HTC and its customers have powered on the HTC accused products, such that
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`the devices have become functional for use in the United States (by testing or otherwise), as well
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`as other uses discussed further in the patent sections below”) (excerpt attached herein as Ex. A).
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`HTC Corp. formed HTC America for the purpose of re-selling the accused products in
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`the United States, and HTC America has continuously served that function since at least 2011.
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`Ex. B at 28:2-22; Ex. C at 30:9-16; see Ex. D at 1.
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` No witness testified that HTC America maintains independent
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`financial books, nor did HTC Corp. provide documentary evidence to that effect.
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 8 of 19 PageID #: 18204
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`IV.
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`LEGAL STANDARD
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`A movant for summary judgment must satisfy its heavy initial burden “either by
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`providing evidence that negates an essential element of [AGIS’s] case, or by showing that the
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`evidence on file . . . establishes no material issue of fact and that [AGIS] will not be able to
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`prove an essential element of its case.” Vivid Techs. v. Am. Sci. & Eng’g., Inc., 200 F.3d 795,
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`807 (Fed. Cir. 1999) (citations omitted). “Summary judgment will not lie if the dispute about a
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`material fact is “genuine,” that is, if the evidence is such that a reasonable jury could return a
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`verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In
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`deciding whether a genuine issue of material fact exists, “[t]he evidence of the non-movant is to
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`be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
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`35 U.S.C. 271(a) provides that an actor is liable for direct infringement if the actor
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`“makes, uses, offers to sell, or sells any patented invention, within the United States or imports
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`into the United States any patented invention.” The location at which a “sale,” and by extension
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`an “import,” occurs is not controlled by the location at which title to goods transfers. North
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`American Philips Corp. v. American Vending Sales, Inc., 35 F.3d 1576, 1579-80 (Fed. Cir. 1994)
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`(“even if we were to conclude that a ‘mechanical test’ might be appropriate here for some
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 9 of 19 PageID #: 18205
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`reason, appellee has failed to explain why the criterion should be the place where legal title
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`passes rather than the more familiar places of contracting and performance . . . Appellees have
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`pointed to no policy that would be furthered by according controlling significance to the passage
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`of legal title here.”). “A ‘sale’ is not limited to the transfer of tangible property; a sale may also
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`be the agreement by which such a transfer takes place.” Transocean Offshore Deepwater
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`Drilling, Inc. v. Maersk Contractors USA, Inc., 617 F.3d 1296, 1311 (Fed. Cir. 2010). Moreover,
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`the location of an offer to sell is not “the location of the offer, but rather the location of the future
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`sale that would occur pursuant to the offer.” Id. at 1309.
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`Further, “an actor is liable for infringement under § 271(a) if it acts through an agent
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`(applying traditional agency principles).” Akamai Technologies, Inc. v. Limelight Networks, Inc.,
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`797 F.3d 1020, 1023 (Fed. Cir. 2015). Acts of infringement by a subsidiary are imputed through
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`the corporate veil if the subsidiary corporation is an “alter ego” of the parent. Insituform
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`Technologies, Inc. v. CAT Contracting, Inc., 385 F.3d 1360, 1380 (Fed. Cir. 2004); Manville
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`Sales Corp. v. Paramount Systems, Inc., 917 F.2d 544, 553 (Fed. Cir. 1990); A. Stucki Co. v.
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`Worthington Industries, Inc., 849 F.2d 593, 596 (Fed. Cir. 1988). The alter ego determination in
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`patent cases is governed by regional circuit law. Insituform 385 F.3d at 1380. Under Texas alter
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`ego law, “the court may disregard the corporate form ‘where a corporation is organized and
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`operated as a mere tool or business conduit’ for another entity.” Id. at 1381.
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`V.
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`ARGUMENT
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`A.
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`A Genuine Dispute of Material Fact Exists as to Whether HTC Corp.
`Imports Sells, and Offers for Sale the Accused Devices in the United States
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`1.
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`A genuine dispute exists as to whether HTC Corp. imports, sells, and
`uses the Accused Devices in the United States, based on HTC Corp.’s
`prior admissions
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`6
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 10 of 19 PageID #: 18206
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`HTC Corp.’s prior stipulation to the fact that it imports, sells, and uses a number of the
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`accused devices in the United States is sufficient for a reasonable jury to conclude that HTC
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`Corp. does import, sell, or offer for sale, the accused devices. See Ex. A at 6. There, HTC Corp.
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`“stipulated to the fact that [it has] imported into the United States, sold for importation into the
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`United States, and/or sold within the United States after importation the accused personal data
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`and mobile communications devices and related software . . . HTC [has] also stipulated that HTC
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`and its customers have powered on the HTC accused products, such that the devices have
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`become functional for use in the United States (by testing or otherwise), as well as other uses
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`discussed further in the patent sections below”
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` HTC Corp. relies on the deposition testimony of its witnesses for the proposition that it
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`does not import or sell the accused devices, but the jury should be allowed to weigh that
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`evidence against HTC Corp.’s prior inconsistent statements before the ITC. This issue is
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`genuine, as a reasonable jury could find that the official admission of HTC Corp. outweighs the
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`denials of its designated witnesses. This issue is material as it goes to an element of direct
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`infringement. Thus, HTC Corp. has failed to meet its burden on summary judgement, and its
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`motion must be denied.
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`2.
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`A genuine issue exists as to whether HTC Corp.’s sales, offers, and
`imports of the accused devices to HTC America occurred within the
`United States
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`It is AGIS’ position, as it has been throughout the instant case, that HTC Corp.’s sales
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`and offers for sale of the accused devices to HTC America occur within the United States.
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`Moreover, it is AGIS’ position that HTC Corp.’s shipments of the accused devices to HTC
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`America are imports which are only sold to HTC America after entry into the United States.
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`HTC Corp. relies primarily on a single assertion in purporting to show the absence of genuine
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`dispute: that, “[t]itle to the accused devices passes from HTC Corp. to HTC America outside the
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 11 of 19 PageID #: 18207
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`United States.” Dkt. 116 at11-12. For this “undisputed fact,”
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`Accused Devices are shipped by aircraft, any transfer at or “just before” a port of entry (i.e. an
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`airport) necessarily occurs within the airspace of the United States. See e.g. VWP of America, Inc
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`v. U.S., 175 F.3d 1327, 1331 (Fed. Cir. 1999); U.S. v. Central Gulf Lines, Inc., 747 F.2d 315, 317
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`(5th Cir., 1982)..
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`jury could conclude that HTC Corp. sells, offers for sale, and imports the accused devices in the
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` there is a genuine dispute of fact from which a reasonable
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`United States.
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`To meet its burden on summary judgement, HTC Corp. must also show that “the
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`judgement is correct as a matter of law.” Vivid Techs. v. Am. Sci. & Eng’g., Inc., 200 F.3d 795,
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`807 (Fed. Cir. 1999) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). But
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`HTC Corp. concedes that the transfer of title is not the only factor to consider for where a “sale”
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`occurs. Halo Elecs., Inc. v. Pulse Elecs., Inc., 831 F.3d 1369, 1377-78 (Fed. Cir. 2016). The
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`determination as to where a sale occurs is not “mechanical,” and also depends on factors such as
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 12 of 19 PageID #: 18208
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`the locations of contracting and performance. Id. at 1378; North American Philips Corp. v.
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`American Vending Sales, Inc., 35 F.3d 1576, 1579-80 (Fed. Cir. 1994). Here, “contracting” and
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`“performance” both primarily take place in the United States.
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`originates in other jurisdictions, the United States retains the greatest share of contact, as
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`sourcing of deliveries is split between at least China and Taiwan. Thus, even if there were not a
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`genuine dispute over the location at which title to the accused devices transfers – which there is –
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`HTC Corp. cannot meet its burden to show that the judgment it seeks is correct as a matter of
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`law.
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`3.
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`A genuine issue exists as to whether HTC Corp. offers accused devices
`for sale to carriers and other customers in the United States
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`A genuine dispute exists as to whether HTC Corp. offers the accused devices for sale to
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`customers in the United States, independent of its intermediate sales to HTC America. The
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`location of an offer to sell is not “the location of the offer, but rather the location of the future
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`sale that would occur pursuant to the offer.” Drilling, Inc. v. Maersk Contractors USA, Inc., 617
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`F.3d 1296, 1309 (Fed. Cir. 2010). Moreover, whether an act constitutes an “offer to sell” under
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`§ 271(a) is determined “according to the norms of traditional contractual analysis.” Rotec
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`Industries, Inc. v. Mitsubishi Corp., 215 F.3d 1246, 1254-55 (Fed. Cir. 2000); see Pfaff v. Wells
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 13 of 19 PageID #: 18209
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`Elecs. Inc., 525 U.S. 55, 63 (1998). “An offer is the manifestation of willingness to enter into a
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`bargain, so made as to justify another person in understanding that his assent to that bargain is
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`invited and will conclude it.” Restatement (Second) of Contracts § 24.
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`As discussed supra 7-9, there exists a genuine issue as to whether the underlying “future
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`sale” is located in the United States. HTC Corp. is the entity responsible for the offer leading to
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`those sales. HTC Corp. performs all negotiations with customers regarding the price of the
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`accused devices, controls and funds the marketing of those devices to customers in the U.S., and
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`executes delivery to those customers. Ex D at 1, 6.
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` At those negotiations, HTC Corp. may accurately represent to those customers that it
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`holds title to the accused product, and can deliver the devices on terms of its choosing. Those
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`customers may reasonably understand that HTC Corp. is manifesting a willingness to bargain,
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`and that their assent will conclude the bargain, without ever being aware of HTC Corp.’s internal
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`title handoff. Thus, because HTC Corp. dominates over every aspect of offering the accused
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`devices to customers, and customers likely understand that HTC Corp. is manifesting a
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`willingness to sell the devices, a reasonable jury could find that that HTC Corp. offers the
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`devices for sale.
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`Thus, a genuine issue of material fact exists as to the accused apparatus and systems
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`claims.
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`B.
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`A Genuine Dispute of Material Fact Exists as to whether HTC Corp. Uses the
`Accused Devices in the United States
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`HTC Corp. argues on the basis that “testing” the accused products does not
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`constitute infringement and, in the alternative, that testing is only carried out in the United States
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 14 of 19 PageID #: 18210
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`by HTC America. But whether carrying out the steps of the asserted method claims during
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`testing constitutes infringement goes to the heart of this case; as reflected at least in AGIS’
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`infringement contentions and expert reports, there is a genuine dispute of material fact as to that
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`issue.
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` A reasonable jury could
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`find on this basis that HTC Corp. used the accused devices in the United States; thus, a genuine
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`issue of material fact exists as to direct infringement of the asserted method claims.
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`C.
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`HTC America’s, Use, Sale, Offers for Sale, and Importation of the Accused
`Devices are all Imputed to HTC Corp.
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`In addition to HTC Corp’s acts of direct infringement discussed above, a reasonable jury
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`could find that HTC America is HTC Corp.’s agent, such that its sale, offer for sale, importation,
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`and use of the accused devices within the United States is imputed to HTC Corp. HTC. Corp.
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`does not dispute that HTC America imports, sells, and offers the accused devices for sale.
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`Moreover, HTC Corp. does not dispute that HTC America tests the accused devices, although
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`the parties disagree over whether testing constitutes a “use” of the patented methods. Under
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`Texas alter law, a subsidiary’s acts of infringement may be imputed through the corporate veil to
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`a parent corporation “where a corporation is organized and operated as a mere tool or business
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`‘conduit’ for another entity.” Insituform Technologies, 385 F.3d at 1381. Here, there is sufficient
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`evidence for a reasonable jury to find that HTC America is a mere tool or business conduit.
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 15 of 19 PageID #: 18211
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`Because a jury could reasonably find that HTC America is a mere “business conduit” or
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`“tool” of HTC Corp., there is a genuine issue as to whether HTC America’s allegedly infringing
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`acts are imputed to HTC Corp with regard to both systems and method claims. Thus, HTC Corp.
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`cannot meet its burden for summary judgement, and it must further fail on this ground
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`VI. CONCLUSION
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`For the foregoing reasons, HTC Corp. has failed to show good cause for its motion and
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`AGIS respectfully requests that the Court deny HTC Corp.’s Motion for Summary Judgment of
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`No Direct Infringement.
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 16 of 19 PageID #: 18212
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`Dated: February 19, 2019
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`BROWN RUDNICK LLP
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 17 of 19 PageID #: 18213
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`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
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`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT LLC
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 18 of 19 PageID #: 18214
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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
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`Case 2:17-cv-00514-JRG Document 210 Filed 02/21/19 Page 19 of 19 PageID #: 18215
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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).
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`/s/ Alfred R. Fabricant
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