Case 2:17-cv-00514-JRG Document 257 Filed 03/04/19 Page 1 of 7 PageID #: 21047
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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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`§
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`§
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`AGIS SOFTWARE DEVELOPMENT LLC’S SUR-REPLY IN OPPOSITION TO
`HTC CORPORATION’S SEALED MOTION FOR SUMMARY JUDGMENT
`OF NO PRE-SUIT INDIRECT INFRINGEMENT (DKT. 109)
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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
`
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`AGIS SOFTWARE DEVELOPMENT LLC’S SUR-REPLY IN OPPOSITION TO
`HTC CORPORATION’S SEALED MOTION FOR SUMMARY JUDGMENT
`OF NO PRE-SUIT INDIRECT INFRINGEMENT (DKT. 109)
`
`
`
`
`
`Case 2:17-cv-00514-JRG Document 257 Filed 03/04/19 Page 2 of 7 PageID #: 21048
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`HTC’s reply ignores AGIS’ position and now purports to seek relief for post-filing acts of
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`induced infringement––HTC did not seek this relief in its motion and summary judgment of no
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`post-suit inducement would be improper. As AGIS explained in its Opposition, AGIS does not
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`seek pre-suit indirect infringement in this case. See Dkt. 182 at 3. AGIS has represented, and
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`intends to show at trial, that HTC has and continues to induce the direct infringement of HTC’s
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`customers––acts of direct infringement that have occurred after the filing of the complaint.
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`HTC provides servers that cause HTC’s customers to install the accused functionality.
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`HTC also provides support for its devices that direct its customers to download and install the
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`accused functionality on compatible Android devices. Additionally, HTC causes its devices to
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`update to the newest versions of the Android Operating System, Google Maps, and the Find My
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`Device application which include these accused functionalities. See Dkt. 182 at 4; see also Ex.
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`A, https://www.htc.com/us/support/htc-10/news/ (providing software updates and download
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`instructions, available after the filing date of the complaint.
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`Case 2:17-cv-00514-JRG Document 257 Filed 03/04/19 Page 3 of 7 PageID #: 21049
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`HTC seems to argue that it should not be liable for infringement by any devices sold prior
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`to the filing of the complaint, but HTC’s position has no support in fact or law. HTC does not
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`present any case law that would foreclose infringement where the acts of direct infringement
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`occur post-complaint. HTC’s arguments merely highlight that there exist several disputes of
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`material fact that preclude a finding of summary judgment.
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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 Pre-Suit
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`Indirect Infringement.
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`2
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`Case 2:17-cv-00514-JRG Document 257 Filed 03/04/19 Page 4 of 7 PageID #: 21050
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`Dated: February 28, 2019
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`BROWN RUDNICK LLP
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`
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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
`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
`
`Rebecca MacDowell Lecaroz
`Massachusetts Bar No. 666860
`Email: rlecaroz@brownrudnick.com
`BROWN RUDNICK LLP
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`3
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`Case 2:17-cv-00514-JRG Document 257 Filed 03/04/19 Page 5 of 7 PageID #: 21051
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`One Financial Center
`Boston, MA 02111
`Telephone: (617) 856-8200
`Facsimile: (617) 856-8201
`
`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
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`4
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`Case 2:17-cv-00514-JRG Document 257 Filed 03/04/19 Page 6 of 7 PageID #: 21052
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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 257 Filed 03/04/19 Page 7 of 7 PageID #: 21053
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 28, 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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