Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 1 of 15 PageID #: 21074
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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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`CASE NO. 2:17-CV-0514-JRG
`(LEAD CASE)
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`HTC CORPORATION,
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`JURY TRIAL DEMANDED
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`Defendant.
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`DEFENDANT HTC CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR
`SUMMARY JUDGMENT OF NO DIRECT INFRINGEMENT AND NO INDIRECT
`INFRINGEMENT OF U.S. PATENT NO. 8,213,970
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 2 of 15 PageID #: 21075
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`TABLE OF CONTENTS
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`Page
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`B.
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`HTC CORP. DOES NOT DIRECTLY INFRINGE THE ’970 PATENT......................... 1
`A.
`The allegedly infringing functionality is accessible only via the Android
`Device Manager/Find My Device app or via Google’s website ............................ 1
`The accused apps are not pre-installed on any HTC Corp. phone ......................... 3
`1.
`AGIS’s opposition ignores unrebutted documentation that
`definitively establishes that the apps are not preinstalled .......................... 3
`AGIS’s third-party documentation supports HTC Corp.’s motion ............ 5
`2.
`AGIS repeatedly and misleadingly misquotes Dr. Wolfe .......................... 7
`3.
`As a matter of law, using Google’s website cannot be a basis for direct
`infringement ........................................................................................................... 9
`THE ACCUSED APPS WERE UNAVAILABLE PRIOR TO AUGUST 2013 ............ 10
`AGIS’S IRRELEVANT ARGUMENT RELATING TO INDUCEMENT .................... 10
`CONCLUSION ................................................................................................................ 10
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`C.
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`I.
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`II.
`III.
`IV.
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 3 of 15 PageID #: 21076
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`CASES
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`TABLE OF AUTHORITIES
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`Absolute Software, Inc. v. Stealth Signal, Inc.,
`659 F.3d 1121(Fed. Cir. 2011.)................................................................................................10
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`Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242 (1986) ...............................................................................................................3, 7
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`Centillion Data Sys., LLC v. Qwest Commc’ns Int’l, Inc.,
`631 F.3d 1279 (Fed. Cir. 2011)................................................................................................10
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`Finjan, Inc. v. Secure Computing Corp.,
`626 F.3d 1197 (Fed. Cir. 2010)..................................................................................................7
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`Iris Connex, LLC v. Acer Am. Corp. et al.,
`Case No. 2:15-cv-1909-JRG, Dkt. No. 246 ...............................................................................5
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`Matsushita Elec. Indus. Co. v. Zenith Radio,
`475 U.S. 574 (1986) ..................................................................................................................5
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`Packless Metal Hose, Inc., v. Extek Energy Equipment (Zhejiang) Co., Ltd.,
`2:09-cv-00265-JRG, Dkt. No. 135 .............................................................................................7
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 4 of 15 PageID #: 21077
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`It is telling that there is not a single person who has ever seen the Android Device
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`Manager/Find My Device app pre-installed on any HTC Corp. phone. Even more telling is that
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`AGIS and its expert entirely ignored HTC Corp.’s strongest piece of evidence:
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`In an effort to muddy the waters, AGIS misrepresents third-party documentation and
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`misquotes testimony. But AGIS’s newly provided third-party documentation actually supports
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`the granting of HTC Corp.’s motion, and not a single one of AGIS’s citations to Dr. Wolfe
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`support the denial of this motion. Finally, in a desperate, last-ditch effort, AGIS claims that HTC
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`Corp. directly infringes because it makes phones that have a web-browser that can access a
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`Google website that has allegedly infringing functionality. But AGIS’s web-browser allegation
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`is 100% irrelevant to liability for direct infringement pursuant to 35 U.S.C. § 271(a).
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`There are no genuine disputes of material fact, and HTC Corp. is entitled to judgment as
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`a matter of law. The Court should grant HTC Corp.’s motion.
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`I.
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`HTC CORP. DOES NOT DIRECTLY INFRINGE THE ’970 PATENT
`A.
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`The allegedly infringing functionality is accessible only via the Android
`Device Manager/Find My Device app or via Google’s website
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`Despite AGIS’s allusions to the contrary, it is inescapable that functionality to find and
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`lock a lost phone from the Android Device Manager/Find My Device app1 (or Google’s website)
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`is core-and-critical to AGIS’s direct infringement case.2 As an example, Mr. McAlexander states
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`1 Find My Device and Android Device Manager are the same thing. Android Device
`Manager was renamed to Find My Device in 2017. For brevity, HTC Corp.’s motion referred to
`Find My Device, so as to avoid any concocted confusion by AGIS, HTC Corp. will use “Android
`Device Manager/Find My Device” herein.
`2 (See, e.g., Dkt. No. 120-09 at A-a14–A-a18, A-a20, A-a28, A-a32, A-a35–A-a36, A-a39–
`A-a40, A-a47–A-a48, A-a57, A-a63, A-a65, A-a71, A-a77, A-a86, A-a88, A-a93, A-a95, A-
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 5 of 15 PageID #: 21078
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`) Both experts agree that the ability to find
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`and interact with a lost device is available only via (1) the
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`Android Device Manager/Find My Device app or via (2)
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`Google’s website.
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` AGIS alleges no other way to access the
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`accused functionality other than through the app or via Google’s website, neither of which are
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`installed on HTC Corp.’s phones, as described below.
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`a100, A-a104, A-a108, A-a115, A-a119 (showing figures of the Find My Device user interface).)
`3 This is not an isolated excerpt. Mr. McAlexander repeatedly ties the claim language to the
`Find My Device app. (See, e.g., Dkt. No. 120 at pp. 4–5.)
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 6 of 15 PageID #: 21079
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`B.
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`The accused apps are not pre-installed on any HTC Corp. phone
`1.
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`AGIS’s opposition ignores unrebutted documentation that definitively
`establishes that the apps are not preinstalled
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`There are no genuine disputes of material fact: the accused Android Device
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`Manager/Find My Device app is not pre-installed on HTC Corp.’s phones. Critically, AGIS’s
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`opposition entirely ignores the central piece of documentary evidence on the issue—
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` This evidence is
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`unrebutted. AGIS ignores these documents entirely while incredulously arguing that “HTC has
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`presented no documentary evidence to support its position that Android Manager and Find My
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`Device are not pre-installed.” (Dkt. No. 199 at 3; see also id. at 8–9.) Ignoring key evidence and
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`presenting unsubstantiated attorney argument cannot defeat summary judgment. See Anderson v.
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`Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[T]here is no issue for trial unless there is
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`sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.”)
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`The evidence is very straightforward and establishes that there is no factual dispute.
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 7 of 15 PageID #: 21080
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` AGIS’s opposition ignores all of this. In addition, Mr. McAlexander did
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`not address
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`, despite having reviewed Mr. Teng’s deposition and HTC
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`Corp.’s interrogatory responses. (Ex. 3, Att. E to McAlexander Rpt. at pp. E1 and E2.) A party
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`and its expert cannot ignore key evidence to create a material factual dispute where none in fact
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`exists.
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`Expert testimony also unequivocally establishes the fact that the Android Device
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`Manager/Find My Device app are not pre-installed.
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 8 of 15 PageID #: 21081
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`Dkt. No. 120-05 at 155:18-156:4; 128:25–129:18.)4
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`. (See, e.g., Wolfe
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`Rpt., Dkt. No. 120-08 at ¶¶ 150–166.) There is no evidence that anyone has ever seen these apps
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`pre-installed on any HTC Corp. phone, and no reasonable juror could find that they were. See
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`Iris Connex, LLC v. Acer Am. Corp. et al., Case No. 2:15-cv-1909-JRG, Dkt. No. 246, p. 33
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`(E.D. Tex. Sept. 2, 2016) (“‘Where the record taken as a whole could not lead a rational trier of
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`fact to find for the non-moving party, there is no ‘genuine issue for trial’”) (citing Matsushita
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`Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).)
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`2.
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`AGIS’s third-party documentation supports HTC Corp.’s motion
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`To distract from the uncontested evidence, AGIS’s opposition creates an entirely
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`unsupported and an entirely new theory that a “service” on the device provides the same user
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`interface functionality as the Device Manager/Find My Device app. (Dkt. No. 199 at 3.) But all
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`that the “service” does is enable that particular device to be found. (Dkt. No. 120 at pp. 9–10
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`(showing the enable box Mr. McAlexander pointed to); Dkt. No. 120-05 at 170:17–171:7; Att. A
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`to McAlexander Rpt., Dkt. No. 120-09 at A-a14; Ex. 1 at 85:5–12, 84:2–4.) AGIS’s patent
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`claims and thus its infringement theory, however, are focused on the user interface for finding
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`and locking the device (See § I.A.) and the only way to generate that user interface is via the
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`Android Device Manager/Find My Device app or by accessing Google’s website via Chrome.
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`(See § I.A (citing to Dkt. No. 120-05 173:23–174:9 and Ex. 1 at 32:16–33:1).)
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`AGIS cites to no evidence supporting this new theory.5 In fact, AGIS’s newly cited
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`third-party Google documentation shows that the “service” is distinct and separate from the
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`functionality that allows a phone to be found and locked. The document itself clearly states that,
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`4 AGIS’s opposition argues that HTC’s citations are “out-of-context” (Dkt. No. 199 at 2) but
`does nothing to explain how. His testimony has been clearly cited in the correct context.
`5 AGIS’s only support says that the service is installed, not that it generates the required UI.
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 9 of 15 PageID #: 21082
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`while the service enabled, users
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`must still use the website or the
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`app to find a lost phone. (Android
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`Security 2017 Year in Review,
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`Ex. 3 to Wolfe Dep., Dkt. No. 199-
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`05 at p. 11 (excerpted and
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`annotated).)
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`The only expert testimony of record supports this. During Dr. Wolfe’s deposition, AGIS
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`presented Exhibits D–G to its opposition for the very first time. Setting aside the evidentiary
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`problems associated with these randomly pulled Internet documents, they actually confirm HTC
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`Corp.’s position.
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`Another one of AGIS’s documents confirms that the Android Device Manager app (or
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`Google’s website) must be used to find and lock a lost phone. The language of the document
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`very clearly instructs users
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`to download the app or go
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`to Google’s website in
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 10 of 15 PageID #: 21083
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`order to find and lock a device. (Android Security 2016 Year in Review, Ex. 5 to Wolfe Dep.,
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`Dkt. No. 199-05 Wolfe Dep. at p. 14 (excerpted right).)
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`AGIS has no facts supporting its opposition, and its evidence actually supports HTC
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`Corp.’s motion.7 No reasonable juror would find that HTC Corp.’s phones directly infringe the
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`claims of the ’970 patent.8 See Packless Metal Hose, Inc., v. Extek Energy Equipment (Zhejiang)
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`Co., Ltd., 2:09-cv-00265-JRG, Dkt. No. 135, p. 6 (E.D. Tex. Feb. 22, 2013) (“A dispute about a
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`material fact is ‘genuine’ when the evidence is ‘such that a reasonable jury could return a verdict
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`for the nonmoving party.’”) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
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`3.
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`AGIS repeatedly and misleadingly misquotes Dr. Wolfe
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`AGIS repeatedly and misleadingly misquotes Dr. Wolfe in its opposition. First,
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`Dr. Wolfe conducted an extra test to search for the Find My Device app that he did not do for the
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`Android Device Manager app: he performed a keyword search for apps starting with “f” for the
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`physical devices in his possession. (Dkt. No. 120-08, ¶ 154; see also Dkt. No. Ex. 1 at 63:2-64:4
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`(stating that “I didn’t do the same comprehensive search that I did for Find My Phone (SIC)”).)
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`AGIS takes this testimony and argues that Dr. Wolfe did not test for the Android Device
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`8 AGIS’s citations to Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197 (Fed. Cir. 2010)
`are misplaced. The instant case deals with the accused app missing, not some minor component.
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 11 of 15 PageID #: 21084
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`Manager app at all. (Dkt. No. 199 at 8.)9 This is patently false. Dr. Wolfe:10
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` Checked multiple carrier websites to ensure that neither the Android Device
`Manager/Find My Device app were described. (Dkt. 120-08, ¶ 158.)
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` Checked HTC America’s website to ensure that the Android Device
`Manager/Find My Device app were not listed as one of the apps from Google
`HTC offered. (Dkt. 120-08, ¶ 159.)
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` Performed a keyword search for “Find My Device” and “Device Manager” on all
`HTC Corp.’s manuals to ensure that both the Find My Device app and Android
`Manager app were not described anywhere. (Dkt. No. 120-08, ¶¶ 160-164.)
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`In a separate instance, AGIS attributes a quote to Dr. Wolfe that he never said. AGIS
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`claims Dr. Wolfe stated “on-device service delivered as an application” and that the app is
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`preinstalled on all Android devices. (Dkt. No. 199 at 8.) Dr. Wolfe never said that. A review of
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`AGIS’s citations and the entirety of pages 71–81 of Ex. 1 makes clear that Dr. Wolfe
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`distinguished between the app and the service.
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`) As explained in §§ I.A. and
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`9 The testimony in the same AGIS-cited section confirms that he did not “recall seeing any
`Android Device Manager application being installed on any device.” (Ex. 1 at 63:2-64:13; see
`also Dkt. No. 120-08, ¶ 154 (stating that “I both scrolled through all visible applications and
`looked in each application folder … [and that] [n]one of these phones included Find My Device
`[and] Device Manager”).)
`10 AGIS cannot escape summary judgment because HTC Corp.’s expert did an extra test for
`the Find My Device app that he did not do for the Android Device Manager app, especially when
`his testing for both is so thorough and complete. The standard is whether there is any genuine
`dispute of material fact and given all the evidence, here there obviously is not.
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 12 of 15 PageID #: 21085
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`I.B.2, the service and accused functionality of the app are different.
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`In another instance, AGIS misleadingly states that Dr. Wolfe’s testified that he did no
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`analysis with respect to Play Protect. (Dkt. No. 199 at 9.) But he clearly did testify that he
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`performed tests relating to Play Protect to determine that Find My Device was entirely unrelated
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`to it. (Ex. 1 at 36:19–37:9 (“I certainly examined the Play Protect interface, and there’s no
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`evidence whatsoever that the Find My Device application is there.”); see also Ex. 1 at 32:5–6.).
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`AGIS’s misleading citations to Dr. Wolfe’s testimony are a transparent attempt at
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`misdirection, and they simply do not create any genuine disputes of material fact.
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`C.
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`As a matter of law, using Google’s website cannot be a basis for direct
`infringement
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`AGIS’s appeal to a direct infringement claim against a web-browser (Chrome) for
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`allegedly infringing functionality on a website is meritless, and contrary to black letter law on
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`direct infringement. Without the Android Device Manager/Find My Device app, the user must
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`use their browser to navigate to Google’s website to find and lock a lost device. (See, e.g.,
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`Dkt. No. 199-05 at p. 11; Dkt. No. 199-07 at 14; Dkt. No. 120-05 at 173:23–174:9; Ex. 1 at
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`32:16–33:1.)
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`Therefore, because there is no Google website code allowing a person to find and lock a
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`device on HTC Corp.’s phones, and because HTC Corp. does not sell, offer to sell, or use
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`Google’s website, the mere presence of Chrome cannot, as a matter of law, give rise to direct
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 13 of 15 PageID #: 21086
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`infringement.11 See 35 U.S.C. § 271(a) (direct infringement requires that one make, use, offer to
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`sell, or sell patented invention); see also Centillion Data Sys., LLC v. Qwest Commc’ns Int’l,
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`Inc., 631 F.3d 1279, 1284 (Fed. Cir. 2011) (“direct infringement by ‘use’ of a system claim
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`‘requires a party . . . to use each and every . . . element of a claimed [system].’”). Put another
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`way, HTC Corp. cannot plausibly directly infringe simply because users of its phones can access
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`an allegedly infringing Google website via a web-browser. To find otherwise would mean that
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`any computer can be found liable for direct infringement because a user can use their browser to
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`access an allegedly infringing website.12
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`II.
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`THE ACCUSED APPS WERE UNAVAILABLE PRIOR TO AUGUST 2013
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`It is undisputed that Android Device Manager was released no earlier than August 2,
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`2013. HTC Corp.’s motion sought judgment of non-infringement prior to its release date. In the
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`absence of the evidence to the contrary, HTC Corp.’s motion should be granted.
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`III. AGIS’S IRRELEVANT ARGUMENT RELATING TO INDUCEMENT
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`HTC Corp.’s motion seeks summary judgment of no direct infringement and only moves
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`with respect to inducement based on the accused apps’ date of first availability. AGIS’s motion
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`is rife with argument and evidence against inducement to distract from the overwhelming
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`evidence that there has been no direct infringement. (Dkt. No. 199 at 4–5 and 10–11 (§ V.B).)
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`Due to the irrelevance of AGIS’s inducement argument, it is not addressed in reply.
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`IV. CONCLUSION
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`HTC Corp.’s motion should be granted for the foregoing reasons.
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`11 Whether HTC Corp. induces others to infringe by merely providing a browser is entirely
`unrelated to direct infringement.
`12 AGIS has cited to no support for its extreme position. AGIS’s cited case did not involve a
`direct infringement claim against a browser accessing a website and is distinguishable. Absolute
`Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121(Fed. Cir. 2011.)
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 14 of 15 PageID #: 21087
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`Dated: February 27, 2019
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`Respectfully submitted,
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`/s/ Miguel J. Bombach
`Matthew C. Bernstein (Lead Attorney)
`CA State Bar No. 199240
`mbernstein@perkinscoie.com
`Miguel J. Bombach
`CA State Bar No. 274287
`mbombach@perkinscoie.com
`Kyle R. Canavera
`CA State Bar No. 314664
`kcanavera@perkinscoie.com
`PERKINS COIE LLP
`11452 El Camino Real, Suite 300
`San Diego, CA 92130-2080
`Tel: (858) 720-5700
`Fax: (858) 720-5799
`
`Eric H. Findlay (Texas Bar No. 00789886)
`Brian Craft (Texas Bar No. 04972020)
`FINDLAY CRAFT, P.C.
`102 N. College Ave., Ste. 900
`Tyler, TX 75702
`Email: efindlay@findlaycraft.com
`Email: bcraft@findlaycraft.com
`Tel: (903) 534-1100
`Fax: (903) 534-1137
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`ATTORNEYS FOR DEFENDANT
`HTC CORPORATION
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`Case 2:17-cv-00514-JRG Document 259 Filed 03/04/19 Page 15 of 15 PageID #: 21088
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served on February 27, 2019, to all counsel of record who are deemed to
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`have consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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` /s/ Miguel J. Bombach
` Miguel J. Bombach
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`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
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`This certifies, pursuant to Local Rule CV-5(a)(7), this document is authorized to be filed
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`Under Seal pursuant to a Protective Order [#119] entered April 10, 2018.
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` /s/ Miguel J. Bombach
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`Miguel J. Bombach
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