Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 1 of 20 PageID #: 18322
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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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`
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`v.
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`
`HTC CORPORATION,
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`
`Defendant.
`
`
`Case No. 2:17-CV-0514-JRG
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
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`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Case No. 2:17-CV-0515-JRG
`(CONSOLIDATED CASE)
`
`JURY TRIAL DEMANDED
`
`LG ELECTRONICS INC.,
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`
`Defendant.
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`§
`§
`§
`§
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S RESPONSE
`IN OPPOSITION TO LG ELECTRONICS INC.’S
`SEALED MOTION FOR SUMMARY JUDGMENT
`OF NON-INFRINGEMENT OF U.S. PATENT NO. 8,213,970 (DKT. 112)
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 2 of 20 PageID #: 18323
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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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`RESPONSE TO STATEMENT OF ISSUES TO BE DECIDED BY THE
`COURT ............................................................................................................................... 1
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`RESPONSE TO STATEMENT OF UNDISPUTED MATERIAL FACTS ...................... 1
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`AGIS’S STATEMENT OF UNDISPUTED FACTS ......................................................... 3
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`LEGAL STANDARDS ...................................................................................................... 6
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`ARGUMENT ...................................................................................................................... 7
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`A.
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`Direct Infringement ................................................................................................. 7
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`1.
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`2.
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`3.
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`Android Device Manager ............................................................................ 9
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`Find My Device ........................................................................................ 11
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`Google Chrome ......................................................................................... 12
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`B.
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`Indirect Infringement ............................................................................................ 13
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`VI.
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`CONCLUSION ................................................................................................................. 14
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`i
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 3 of 20 PageID #: 18324
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Cases
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`Absolute Software, Inc. v. Stealth Signal, Inc.,
`659 F.3d 1121, 100 U.S.P.Q.2d 1641 (Fed. Cir. 2011) ...........................................................12
`
`AFG Industries, Inc. v. Cardinal IG Co., Inc.,
`375 F.3d 1367, 71 U.S.P.Q.2d 1678 (Fed. Cir. 2004) .............................................................12
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`AGIS Software Development LLC v. Huawei Device USA Inc.,
`2:17-cv-513-JRG (E.D. Tex.) ....................................................................................................8
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`Alexsam, Inc. v. Barnes & Noble, Inc.,
`No. 2:13-cv-3, 2013 WL 12154926 (E.D. Tex. 2013) .............................................................14
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`Baker v. Putnal,
`75 F.3d 190 (5th Cir. 1996) .......................................................................................................6
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`Finjan, Inc. v. Secure Computing Corp.,
`626 F.3d 1197 (Fed. Cir. 2010)..............................................................................................8, 9
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`Genband US LLC v. Metaswitch Networks Corp.,
`No. 2:14-cv-33-JRG-RSP, 2016 WL 7645424 (E.D. Tex. 2016) ..............................................6
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`ParkerVision, Inc. v. Qualcomm Inc.,
`903 F.3d 1354 (Fed. Cir. 2018)..................................................................................................9
`
`United States v. Renda Marine, Inc.,
`667 F.3d 651 (5th Cir. 2012) .....................................................................................................6
`
`Vasudevan Software, Inc. v. Microstrategy, Inc.,
`782 F.3d 671 (Fed. Cir. 2015)....................................................................................................7
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`Other Authorities
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`Local Rule CV-56(a)........................................................................................................................1
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`Local Rule CV-56(d) .......................................................................................................................1
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`ii
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`

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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 4 of 20 PageID #: 18325
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`Plaintiff AGIS Software Development LLC (“AGIS”) hereby submits its Response in
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`Opposition to LG Electronics Inc.’s (“LG”) Sealed Motion for Summary Judgment of Non-
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`Infringement of U.S. Patent No. 8,213,970 (Dkt. 112).
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`I.
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`RESPONSE TO STATEMENT OF ISSUES TO BE DECIDED BY THE COURT
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`Whether LGEKR is entitled to summary judgment of non-infringement as to U.S. Patent
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`No. 8,213,970.
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`Response: Whether LG has established there is no genuine issue of material fact that it
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`has not infringed U.S. Patent No. 8,213,970; whether LG’s expert applied the wrong standard for
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`induced infringement by requiring compulsion.
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`II.
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`RESPONSE TO STATEMENT OF UNDISPUTED MATERIAL FACTS
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`LG has failed to present a Statement of Undisputed Material Facts as required by Local
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`Rule CV-56(a) because the statements contain disputed facts and are argumentative under Local
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`Rule CV-56(d). AGIS presents the following responses to the allegations in the Statement of
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`Undisputed Material Facts.
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`Response to No. 1: Undisputed.
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`Response to No. 2: Undisputed, however, AGIS’s infringement contentions are not
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`limited to the Find My Device application.
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`Response to No. 3: Disputed.
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`Response to No. 4: Undisputed as to this subset of functionalities.
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`Response to No. 5: Disputed. The client-side of the Find My Device on-device service is
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`one example of an infringing application interface.
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`Response to No. 6: Disputed. The evidence of record shows that Android Device
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`Manager and Find My Device standalone applications are pre-installed on all Android devices,
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`including the LG Accused Devices. LG has provided evidence showing only that Android
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`Device Manager and Find My Device may be an optional requirement by Google, and LG has
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`provided no evidence showing that Android Device Manager and Find My Device are not
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`actually pre-installed on the LG Accused Devices.
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`Response to No. 7: Undisputed that the Google Play Store, which is pre-installed by LG
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`on the LG Accused Devices, is a mechanism for downloading the latest version of Android
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`Device Manager or Find My Device. Disputed that Google Play Store is the sole mechanism for
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`downloading software updates to the Android Device Manager or Find My Device standalone
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`application. LG provides software updates from an upgrade center and through its website.
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`Response to No. 8: Disputed.
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`Response to No. 9: Undisputed that Find My Device can be accessed via Google Chrome
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`application which is pre-installed on the LG Accused Devices. Users of LG Accused Devices
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`can enter the URL or they may type “find my phone” in the Google Chrome application.
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`Response to No. 10: Undisputed that the ’970 Patent specification describes embodiments
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`with the above-quoted language. However, the Court construed “a forced message alert software
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`application program” to mean “application software that allows an operator to create and
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 6 of 20 PageID #: 18327
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`transmit forced message alerts” and any limitation that is not recited in the asserted claims or the
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`Court’s construction is improper.
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`Response to No. 11: Undisputed as to the terms of the recited claim limitations. Disputed
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`as to any “client-side functionality” limitations attributed to the claims that exceed the scope of
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`the claims and the Court’s construction order.
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`Response to No. 12: Disputed that the claims require any “origination.”
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`Response to No. 13: Undisputed that Mr. McAlexander made the above-cited statements.
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`Disputed to the extent that LG argues that the Find My Device application program is not
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`installed on each Accused Device.
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`Response to No. 14: Undisputed that the above citations refer to one of
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`Mr. McAlexander’s infringement bases. Disputed to the extent that LG argues that these are all
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`of Mr. McAlexander’s infringement bases.
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`Response to No. 15: Disputed to the extent that LG argues that the Find My Device
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`standalone application is AGIS’s only basis for infringement.
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`Response to No. 16: AGIS disputes that there is no pre-installed application software on
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`the accused LG devices for Find My Device. AGIS contends that at least Find My Device is
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`installed on LG devices, and that Google Chrome, which provides the identical functionality, is
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`also installed on LG devices.
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`III. AGIS’S STATEMENT OF UNDISPUTED FACTS
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`AGIS and its expert, Mr. McAlexander, set forth multiple theories of infringement of the
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`’970 Patent based on Android Device Manager, Find My Device, and Google Chrome. First,
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`AGIS contends that LG directly infringed, and continues to directly infringe, the ’970 Patent by
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`3
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 7 of 20 PageID #: 18328
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`making, selling, using, and importing LG Accused Products with the Android Device Manager
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`standalone application, the Android Device Manager on-device services, and Android Device
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`Manager via the Google Chrome application. Ex. B, Attachment A to Expert Report of Joseph
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`McAlexander at A-8, A-a1, A-a2, A-a27, A-a78, A-a79; Ex. C, Expert Report of Joseph
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`McAlexander at 84-87. It is AGIS’s position that client-side user interface for Android Device
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`Manager is accessible via the Android Device Manager standalone application, the Android
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`Device Manager on-device services, and the Google Chrome Application on LG Accused
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`Devices. Second, AGIS contends that LG directly infringed, and continues to directly infringe,
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`the ’970 Patent by making, selling, using, and importing LG Accused Products with the Find My
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`Device standalone application, the Android Device Manager on-device services, and the Android
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`Device Manager via the Google Chrome application. Id. The user interface for Find My Device
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`is accessible via the Find My Device standalone application, the Find My Device on-device
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`services, and the Google Chrome Application on LG Accused Devices. It is undisputed that
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`each of these methods for accessing the user interface for Android Device Manager and Find My
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`Device allows a user of the LG Accused Device to view an account-linked device’s location and
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`to select and create a remote instruction (e.g., lock or secure the device, ring the device, or erase
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`the device) to be transmitted to that device. LG’s motion largely addresses the standalone
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`application.
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`Publicly-available documents show that all Android devices, including the LG Accused
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`Devices, were pre-installed with Android Device Manager and Find My Device standalone
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`applications, and that Find My Device remains pre-installed as a part of the Google Play Protect
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`suite. Exs. D-H, Exhibits 7 -11 to the Deposition of Edward Tittel. Google publicly identifies
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`LG as a certified partner for Google Play Protect which means that Find My Device is pre-
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 8 of 20 PageID #: 18329
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`installed on its devices as part of Google Play Protect. Ex. I, Exhibit 6 to the Deposition of
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`Edward Tittel. LG cites to no documentary evidence to support its position that Android Device
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`Manager and Find My Device are not pre-installed.
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` LG provides software updates from an upgrade center and through its website, and it is
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`undisputed that these software updates include Google’s Android operating system and Google
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 9 of 20 PageID #: 18330
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`applications. Exs. L and M, Exhibits 2 and 3 to the Deposition of Edward Tittel.
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`LG offers a late-produced declaration from
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`allegations submitted in an improper declaration produced over two months after the close of fact
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` Now, LG seeks summary judgment based on
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`discovery. LG did not seek leave of the Court to introduce new facts.
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`IV.
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`LEGAL STANDARDS
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`Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and
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`admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
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`any material fact and that the moving party is entitled to judgment as a matter of law. Baker v.
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`Putnal, 75 F.3d 190, 198 (5th Cir. 1996). In considering a summary judgment motion, the court
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`must “view the evidence in the light most favorable to the non-moving party.” United States v.
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`Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012). “As a general rule, summary judgment is
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`inappropriate where an expert’s testimony supports the non-moving party’s case.” Genband US
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`LLC v. Metaswitch Networks Corp., No. 2:14-cv-33-JRG-RSP, 2016 WL 7645424, at *1 (E.D.
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 10 of 20 PageID #: 18331
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`Tex. 2016) (citing Vasudevan Software, Inc. v. Microstrategy, Inc., 782 F.3d 671, 683 (Fed. Cir.
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`2015)).
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`V.
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`ARGUMENT
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`LG alleges that there is no genuine issue of material fact that LG does not “actually
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`provide to end users in the United States LG devices with the Find My Device application pre-
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`installed,” or induce end-users to download or use the Find My Device application. Significant
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`questions of fact still remain as to whether LG pre-installs the Find My Device application on the
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`smartphones it offers for sale and sells in the United States. Additionally, the evidence and
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`testimony provided by LG establishes the LG accused devices all possess the capabilities for the
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`Find My Device application, that Google Chrome application which is, itself, infringing, is pre-
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`installed on all LG accused devices, and that LG induces its customers to install the Find My
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`Device application and to use it in an infringing matter. Additionally, LG seeks summary
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`judgment based on allegations submitted in an improper declaration written by a late-produced
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`witness (see Dkt. 109) produced over two months after the close of fact discovery. Accordingly
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`this matter is not appropriate for summary judgment.
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`A.
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`Direct Infringement
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`There exists a genuine issue of material fact as to whether the relevant “forced message
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`alert software application program” is pre-installed on LG Accused Devices. AGIS contends
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`that the asserted claims of the ’970 Patent are practiced by the following application programs on
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`the LG Accused Devices: Android Device Manager (“ADM”), Find My Device (“FMD”), and
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`Google Chrome (“Chrome”). AGIS contends that the following configurations infringe the
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`claims: (1) Pre-installed ADM on Accused Devices, (2) Pre-installed FMD on Accused Devices,
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`and (3) Chrome along with embedded Android services. LG admits that each and every LG
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`Accused Device includes Chrome, as well as at least embedded Android services portions of
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 11 of 20 PageID #: 18332
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`ADM and/or FMD. AGIS contends that ADM and FMD are software that have been included in
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`the LG Accused Devices as both standalone applications and services embedded within Android.
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`Regarding Chrome, AGIS contends that both ADM and FMD are and have been accessible via
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`the Chrome browser. Chrome renders an interactive user interface that is the same or
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`substantially similar to the user interface provided by the standalone applications. In other
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`words, Chrome, as available on the LG handsets, is an example of the claimed forced message
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`alert software application program––requiring an Internet connection does not preclude
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`infringement.
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`As a preliminary matter, the Court construed “a forced message alert software application
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`program” to mean “application software that allows an operator to create and transmit forced
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`message alerts.” AGIS Software Development LLC v. HTC Corporation, 2:17-cv-514-JRG, Dkt.
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`93 (E.D. Tex.) (adopting AGIS Software Development LLC v. Huawei Device USA Inc., 2:17-cv-
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`513-JRG, Dkt. 205 (E.D. Tex.)). Unless specifically required by the claims, there is no
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`construction requiring that the “forced message alert software application program” be a single
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`pre-installed, standalone application. At most, LG has identified an issue of factual dispute
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`between its expert and AGIS’s expert regarding an application of the Court’s construction.
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`Additionally, as set forth in greater detail below, it is undisputed that Chrome and the
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`ADM and FMD functionalities are built into the LG accused devices. Such built-in features are
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`sufficient to establish direct infringement and, ultimately, the sufficiency of proof is a question
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`for the jJury. For example, in Finjan, Inc. v. Secure Computing Corp., the Federal Circuit held
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`that “[i]nfringement occurred because the code ‘was written in such a way as to enable a user of
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`that software to utilize the function . . . without having to modify that code.’” 626 F.3d 1197,
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`1205 (Fed. Cir. 2010). The Federal Circuit further held that “[t]he fact that users needed to
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 12 of 20 PageID #: 18333
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`‘activate the functions programmed’ by purchasing keys does not detract from or somehow
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`nullify the existence of the claimed structure in the accused structure.’” Id. Like Finjan, the
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`code or functionality is “’already present’ in Defendants’ accused products when sold. There is
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`no evidence that customers need to modify the underlying code to unlock” any functionalities.”
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`Id.; see also ParkerVision, Inc. v. Qualcomm Inc., 903 F.3d 1354, 1361 (Fed. Cir. 2018)
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`(“depending on the claims, an accused device may be found to infringe if it is reasonably capable
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`of satisfying the claim limitations, even though it may also be capable of noninfringing modes of
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`operation”) (citing Finjan, Inc., 626 F.3d 1204).
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`Finally, LG’s allegations with respect to Find My Device and Google Chrome are based
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`on late-produced declaration from
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`first time in
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` Summary judgment based on allegations raised for the
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`would be improper, and the Court should deny the motion.
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`1.
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`Android Device Manager
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`First, there exists a genuine issue of material fact as to whether the LG Accused Devices
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`are pre-installed with ADM.
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`corroborated with publicly-available information that indicates ADM was “delivered as an
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`application” with the LG Accused Devices. Ex. E at 4.
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` AGIS’s position is at least
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 13 of 20 PageID #: 18334
`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 13 of 20 PageID #: 18334
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 14 of 20 PageID #: 18335
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`2.
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`Find My Device
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`Second, there exists a genuine issue of material fact as to whether the LG Accused
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`Devices are pre-installed with FMD, either as a standalone application or with on-device
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`services. Again, the parties’ experts disagree on this issue.
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` These admissions are inconsistent
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`with the testimony proffered by LG at summary judgment, and thus, LG’s motion should be
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`denied on that basis alone. Additionally, when presented with evidence demonstrating that “Find
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`My Device is part of Google Play Protect” and that LG was a certified partner for Google Play
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`Protect,
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 15 of 20 PageID #: 18336
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`3.
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`Google Chrome
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`Third, there exists a genuine issue of material fact as to whether ADM and FMD software
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`executed by the pre-installed Google Chrome application, infringes the ’970 Patent.
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` Thus, whether Chrome, in combination with ADM and FMD services constitutes
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`“a forced message alert software application program” as construed by the Court, is a question of
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`fact for the jury. Further, whether the Chrome application satisfies the construed claim is a
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`question of fact that merely highlights a dispute between parties, precluding a finding of
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`summary judgment. See Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1133,
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`100 U.S.P.Q.2d 1641 (Fed. Cir. 2011) (“The decision fails to draw a reasonable inference in
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`favor of . . . the non-moving party . . . [and] [o]n these facts, a reasonable jury could find that the
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`same component that provides the agent IP address . . . also provides the host IP address that is in
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`the packet when it arrives at the host.”); see also AFG Industries, Inc. v. Cardinal IG Co., Inc.,
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`375 F.3d 1367, 1371, 71 U.S.P.Q.2d 1678 (Fed. Cir. 2004) (“In particular, a trial court cannot
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`reach a conclusive finding of noninfringement if the record shows some evidence supporting a
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`finding of noninfringement and some evidence to the contrary.”).
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 16 of 20 PageID #: 18337
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`B.
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`Indirect Infringement
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`There exists genuine issues of material facts as to whether LG actively induces
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`infringement of the ’970 Patent. Dkt. 112 at 15. LG does not claim that it lacked knowledge of
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`the patents-in-suit. Instead, LG focuses again on the alleged lack of pre-installed applications on
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`the LG Accused Devices. As shown above, the parties and their experts dispute whether FMD,
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`ADM, and Chrome meet the claim limitations so as to establish direct infringement by LG.
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`While LG has not disposed of all genuine issues of material fact with regard to direct
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`infringement, its defense to direct infringement underscores its liability for indirect infringement.
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`LG’s position relies on alleged facts that it is LG’s customers that invoke additional software.
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`Additionally, it is beyond dispute that LG directs its customers to perform the claimed methods
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`and to invoke infringing software.
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` Moreover, LG
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`provides user manuals instructing users to use Find My Device and Google Play Protect. Ex. A
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`at 74:15-24, 75:5-20, 76:2-9, 76:18-77:18.
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`AGIS’s position is supported by extensive admissible evidence to be presented to a jury.
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`13
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 17 of 20 PageID #: 18338
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`evidence to support his opinion,” and whose expert reports “are not comprised of unsupported
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`conclusory opinions,” summary judgment is improper. Alexsam, Inc. v. Barnes & Noble, Inc.,
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` Where an expert “addresses considerable
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`No. 2:13-cv-3, 2013 WL 12154926, at *2 (E.D. Tex. 2013).
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`VI. CONCLUSION
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`For the foregoing reasons, AGIS respectfully requests that the Court deny summary
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`judgment that LG has not infringed U.S. Patent No. 8,213,970.
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`Dated: February 19, 2019
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`BROWN RUDNICK LLP
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` /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
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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 18 of 20 PageID #: 18339
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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
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`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
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`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT LLC
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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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`Case 2:17-cv-00514-JRG Document 214 Filed 02/21/19 Page 20 of 20 PageID #: 18341
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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
` Alfred R. Fabricant
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