Case 2:17-cv-00514-JRG Document 261 Filed 03/04/19 Page 1 of 7 PageID #: 21105
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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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`DEFENDANT HTC CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR
`SUMMARY JUDGMENT OF NO DIRECT INFRINGEMENT
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`Case 2:17-cv-00514-JRG Document 261 Filed 03/04/19 Page 2 of 7 PageID #: 21106
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`HTC Corp.’s Motion for Summary Judgment of No Direct Infringement (Dkt. No. 116)
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`presented two grounds of summary judgment: (1) that HTC Corp. does not directly infringe the
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`method claims because there is no genuine dispute as to whether HTC Corp. uses the asserted
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`method claims in the United States; and (2) that HTC Corp. does not directly infringe the system
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`and device claims. AGIS’s Opposition (Dkt. No. 185) presents no evidence showing a genuine
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`dispute of material fact on the former ground.
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`“[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving
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`party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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`249 (1986). Here, AGIS has identified no evidence that HTC Corp., or even the separate entity
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`HTC America, Inc., uses the recited method claims in the United States.
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`In the Motion, HTC Corp. definitively showed that there was no evidence that HTC
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`Corp. tests the accused devices in the United States, and thus AGIS cannot proceed to trial on
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`this theory, under precedent of the Federal Circuit and this Court. (See Motion, p. 8–10 (citing
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`Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1206 (Fed. Cir. 2010); Convolve, Inc. v.
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`Dell Inc., No. 2:08-CV-244-RSP, 2017 WL 2463398, at *7–8 (E.D. Tex. June 7, 2017); Summit
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`6 LLC v. Research in Motion Corp., No. 3:11-cv-367-O, 2013 WL 12124321, at *4 (N.D. Tex.
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`June 26, 2013)).) In response, AGIS now presents several entirely new theories of HTC Corp.’s
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`alleged “use” of the asserted method claims.
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`First, AGIS alleges that HTC Corp. used the asserted method claims in the United States
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`when HTC America’s employees “demonstrated the accused devices while representing HTC
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`Corp.” (Opposition, p. 4; see also id. at 10–11.) And the entirety of the “evidence” that AGIS
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`identified to support this supposed genuine dispute is the following, single, question and answer
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`of HTC America employee Nigel Newby-House:
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`Case 2:17-cv-00514-JRG Document 261 Filed 03/04/19 Page 3 of 7 PageID #: 21107
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` it says nothing about the
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`method claims that AGIS asserts. AGIS asserts method claims that recite detailed steps
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`performed by Google’s Find My Device application and the location sharing feature of the
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`Google Maps application. AGIS elicited no testimony, or any other evidence, that HTC
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`America’s employees demonstrated the accused Google software applications, or that the
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`accused Google software applications were even installed on the phones during demonstrations,
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`much less that the specific steps of the method claims were performed during those
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`demonstrations. AGIS has simply failed to present any evidence on which a reasonable jury
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`could conclude that HTC Corp. or even HTC America performs any, much less all, of the steps
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`of the asserted method claims. AGIS has failed to show a genuine dispute of material fact based
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`on this argument.
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`Second, AGIS seems to allege that any testing that HTC America performs in the United
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`States can be imputed to HTC Corp., and thus HTC Corp. used the asserted method claims in the
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`United States when HTC America performed its testing. (See Opposition, pp. 3, 10–11.) The
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`following are the entirety of the statements that AGIS makes to support this allegation (no
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`citations omitted):
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`that HTC Corp.’s engineers performed testing of the accused devices. AGIS
`disputes HTC Corp.’s statement that all testing was done in Taiwan. AGIS
`further disputes HTC Corp.’s statement that HTC Corp.’s witnesses were not
`questioned as to where testing was performed.
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`(Opposition, pp. 2–3.)
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`Case 2:17-cv-00514-JRG Document 261 Filed 03/04/19 Page 4 of 7 PageID #: 21108
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`HTC Corp. argues on the basis that “testing” the accused products does not
`constitute infringement and, in the alternative, that testing is only carried out in
`the United States by HTC America. But whether carrying out the steps of the
`asserted method claims during testing constitutes infringement goes to the heart of
`this case; as reflected at least in AGIS’s infringement contentions and expert
`reports, there is a genuine dispute of material fact as to that issue.
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`(Opposition, pp. 10–11.) Note that AGIS cites no evidence to support any of these assertions.
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`As HTC Corp. pointed out in the Motion, the only evidence that AGIS elicited regarding testing
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`is that HTC Corp. tests the devices, that it does so in Taiwan,
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` AGIS now says in its Opposition: We contest that. But AGIS has no
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`evidence with which to contest the evidence cited in the Motion. AGIS has simply failed to
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`present any evidence on which a reasonable jury could conclude that HTC Corp. or HTC
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`America even opens the accused software applications during testing, much less that they
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`perform any or all of the steps of the asserted method claims. This argument does not show a
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`genuine dispute of material fact.
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`The final point to note regarding AGIS’s lack of evidence to support its claim of “use” of
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`the method claims relates to the 2011 International Trade Commission stipulation cited by AGIS.
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`(See Opposition, pp. 3, 7.) HTC Corp. will set aside for the moment the facts that this stipulation
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`was made before issuance of the patents, was made in a separate case as part of a negotiation to
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`streamline discovery in that case, and was made on behalf of HTC Corp. as well as HTC
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`America and another third-party. Even setting aside those facts that call into question the
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`relevance of the stipulation, that document also says absolutely nothing about whether HTC
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`Corp., HTC America, or anyone actually performed any of the steps of the asserted method
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`claims. As to “use” of the accused devices, the stipulation states as follows:
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`Apple and HTC have stipulated that HTC and its customers have powered on the
`HTC accused products, such that the devices have become functional for use in
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`Case 2:17-cv-00514-JRG Document 261 Filed 03/04/19 Page 5 of 7 PageID #: 21109
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`the United States (by testing or otherwise)[.]
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`(Opposition, Ex. A, p. 8.) Thus, HTC Corp. was stipulating to nothing more than the fact that it
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`turned the devices on in the United States, and that the devices were used in the United States,
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`potentially by testing. But this says nothing about the Find My Device application—which did
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`not even exist at the time—or the Google Maps application, which are required for AGIS’s
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`infringement allegations for the asserted method claims. A reasonable jury simply could not
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`look at the preceding sentence and reach the conclusion that HTC Corp. or even HTC America
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`performed any, much less all, of the steps of the asserted method claims. Any such verdict based
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`on this single sentence as evidence would be manifestly unreasonable. This stipulation alone or
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`in combination with AGIS’s other bare allegations does not show a genuine dispute of material
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`fact.
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`In conclusion, AGIS has wholly failed to present any evidence on which a reasonable
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`jury could find for AGIS with respect to HTC Corp.’s alleged direct infringement of the asserted
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`method claims. For this reason and those presented in the Motion, HTC Corp. respectfully
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`requests the Court to enter summary judgment against AGIS.
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`Case 2:17-cv-00514-JRG Document 261 Filed 03/04/19 Page 6 of 7 PageID #: 21110
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`Dated: February 27, 2019
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`Respectfully submitted,
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`/s/ Kyle R. Canavera
`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
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`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 261 Filed 03/04/19 Page 7 of 7 PageID #: 21111
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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/ Kyle R. Canavera
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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/ Kyle R. Canavera
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