Case 2:17-cv-00514-JRG Document 267 Filed 03/04/19 Page 1 of 12 PageID #: 21194
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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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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`v.
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`HTC CORPORATION,
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`Plaintiff,
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`Defendant.
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`v.
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`LG ELECTRONICS INC.,
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`Plaintiff,
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`Defendant.
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`Case No. 2:17-cv-00514-JRG
`(Lead Case)
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`JURY TRIAL DEMANDED
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`Case No. 2:17-cv-00515-JRG
`(Member Case)
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`JURY TRIAL DEMANDED
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`LG ELECTRONICS INC.’S REPLY BRIEF IN SUPPORT OF 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 267 Filed 03/04/19 Page 2 of 12 PageID #: 21195
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`I.
`II.
`III.
`IV.
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION .............................................................................................................. 1
`INVOLVING THE CLIENT-SIDE FIND MY DEVICE APPLICATION ....................... 1
`SUMMARY JUDGMENT IS APPROPRIATE ................................................................. 3
`BY LG KOREA .................................................................................................................. 5
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`THERE CAN BE NO DIRECT INFRINGEMENT ON ANY THEORY
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`THE EVIDENCE CITED IN AGIS’S OPPOSITION CONFIRMS THAT
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`THE DOCUMENTS AGIS IDENTIFIES FOR THE FIRST TIME IN ITS
`OPPOSITION DO NOT SUPPORT ALLEGED INDIRECT INFRINGEMENT
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`i
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Dogleg Right Partners, LP v. Taylormade Golf Co., Inc.,
`No. 2:07-cv-533-TJW-CE, 2011 WL 2200668 (E.D. Tex. June 6, 2011) .................................4
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`ii
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`LG Electronics Inc. (“LG Korea”) submits this reply brief in response to AGIS’s
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`opposition to LG Korea’s motion for summary judgment of non-infringement of U.S. Patent No.
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`8,213,970 (“’970 patent”).
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`I.
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`INTRODUCTION
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`AGIS’s opposition brief confirms that the ’970 patent is not infringed by LG Korea.
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`Specifically, AGIS does not dispute the following material facts:
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`● The asserted claims of the ’970 patent require action by a sender device (i.e., client-side
`functionality).
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`● AGIS’s infringement expert, Mr. McAlexander, cites to only client-side Google source
`code for the Find My Device Application (“FMD”).
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`● LG Korea’s corporate witness on device manufacturing confirmed that the Find My
`Device and Android Device Manager (“ADM”) Application are not pre-installed during
`the manufacturing process for the accused LG devices.
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`Because the client-side code AGIS accuses of infringement is not on the phone when it is
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`sold, LG Korea cannot infringe the ‘970 patent. To create an alleged issue of fact, AGIS (1)
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`mischaracterizes documents its own expert elected not to rely upon in rendering his infringement
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`opinion; (2) attempts to deflect attention away from undisputed, dispositive facts by
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`misrepresenting testimony from LG Korea’s expert; and (3) raises a new infringement theory
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`unsupported by AGIS’s expert and not disclosed in its infringement contentions that also fails.
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`II.
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`THERE CAN BE NO DIRECT INFRINGEMENT ON ANY THEORY
`INVOLVING THE CLIENT-SIDE FIND MY DEVICE APPLICATION
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`Mr. McAlexander’s analysis confirms that the claimed infringement depends upon the
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`FMD client application for all of the limitations that require functionality on the claimed sender
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`PDA/cell phone (i.e., client-side functionality). (See D.I. 112-7, Ex. 4 at ¶ 132). For example,
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`for the “means for attaching a forced message alert software packet to a voice or text message
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`creating a forced message alert that is transmitted by said sender PDA/cell phone to the
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`1
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`recipient PDA/cell phone . . .” recited in claim 1, Mr. McAlexander’s analysis, screenshots and
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`source code citations show that his theory is that the FMD Application infringes:
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`Regarding the first portion of the required algorithm, the forced message alert
`software application program (i.e., Find My Device) is installed on a plurality of
`PCs and/or PDA/cell phones.
`. . .
`The first step in utilizing the Find My Device functionality is to select the forced
`message alert software application program on the sender PC or PDA/cell
`phone, i.e., to launch the Find My Device App by selecting the icon.
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`(D.I. 112-7, Ex. 4, Attachment A at A-a22-53 (emphasis added).) AGIS does not dispute that
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`Mr. McAlexander relies upon only client-side source code from the FMD Application. (See D.I.
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`112 at 5, ¶ 14; D.I. 193 at 3 (Response to No. 14).)
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`Similarly, Mr. McAlexander contends that:
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`The claimed step of accessing a forced message alert software application
`program is the initiation of the forced message application program by the
`Android operating system when the application has been selected by a user for
`execution.
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`(D.I. 112-7, Ex. 4, Attachment A at A-a86-88 (emphasis added).) The selected application is the
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`FMD Application, as shown on the screenshot that follows his contention. (See id. at A-a89.)
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`And, contrary to AGIS’s unsupported representations in its opposition brief (see D.I. 193
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`at 3-4), there is no separate analysis for these claim limitations directed to Google Chrome or
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`Google Play Protect.1 (See, e.g., D.I. 112-7, Ex. 4, Attachment A at A-a22-53, A-a86-88.) There
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`is also no dispute that the FMD (and the prior ADM) Applications are the very client apps that
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`the LG Korea engineer confirmed are not pre-installed on the accused LG devices. (D.I. 112 at
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`1 AGIS suggests that it has a distinct infringement theory for ADM in addition to its expert’s
`analysis of the FMD Application. (D.I. 193 at 7, 9-11). This is incorrect. Both experts agree
`that ADM was merely rebranded to FMD, and Mr. McAlexander confirms that his analysis with
`respect to FMD is representative of ADM. (D.I. 112-6 at 83; D.I. 112-7 at 85-86, ¶¶ 171-72; D.I.
`112-2, ¶ 1; Case No. 17-cv-513, D.I. 36-5, ¶ 1.)
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`2
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`2, ¶ 6; D.I. 193 at 2 (Response to No. 6)2.) And, AGIS does not (and cannot) dispute that the
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`accused phones that LG Korea’s expert inspected did not, in fact, include the FMD Application
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`pre-installed. (D.I. 112 at 2, ¶ 8; D.I. 193 at 2 (Response to No. 8).) On this basis, there can be
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`no dispute that LG Korea cannot infringe because the phones, when sold by any LG entity, do
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`not include the FMD Application.
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`III. THE EVIDENCE CITED IN AGIS’S OPPOSITION CONFIRMS THAT
`SUMMARY JUDGMENT IS APPROPRIATE
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`AGIS asserts that there are FMD and ADM functionalities built into the accused LG
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`devices sufficient to defeat summary judgment. (D.I. 193 at 8-12.) AGIS’s cited evidence
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`establishes the contrary. First, AGIS claims that a Google document suggests that “ADM was
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`‘delivered as an application’ with the LG Accused Devices.” (D.I. 193 at 9 (citing Ex. E at 4).)
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`But not only was that page not cited by AGIS’s expert in support of his opinion or in AGIS’s
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`Infringement Contentions, it does not even mention “Android Device Manager.” Second, AGIS
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`relies upon deposition testimony indicating that FMD and ADM functionality in GmsCore,
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`which is included as part of Google Play Protect, is built into the LG Devices. (D.I. 193 at 10-
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`12.) But AGIS admits, GmsCore only implements receiver-side, not sender-side, functionality
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`for FMD and ADM. (D.I. 193 at 10; D.I. 112-2, ¶ 4 (“The GmsCore package does not include []
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`client-side application and interface.”); D.I. 112-6 ¶ 163.)
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`This is the whole point of LG’s Motion. The FMD/ADM functionality that is pre-
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`installed on LG phones is receiver side functionality. (D.I. 112 at 14; D.I. 112-2 ¶ 3; D.I. 112-5
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`at 68:7-69:9). But, as McAlexander recognized, all asserted claims require sender side
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`2 AGIS’s suggestion that an LG Korea engineer testified that Find My Device and Android
`Device Manager may be “optional” is simply incorrect. (D.I. 193 at 2.) The cited testimony
`expressly states:
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` (See D.I. 112 at 2, ¶ 6 (emphasis added).)
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`3
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`functionality. And, the allegedly infringing functionality on which AGIS relies for sender side
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`claimed functions is in the stand-alone application, which is not preinstalled, and which a user
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`can choose to install, or not. (D.I. 112 at 10-12; D.I. 112-5 at 56:11-12, 14-20; id. at 57:14-19,
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`21-22; id. at 57:24-58:14; D.I. 112-2 ¶ 4.)
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`AGIS seeks to rescue its claims with an assertion that the Chrome browser somehow
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`infringes the ’970 patent because a user can access a FMD web page by opening and navigating
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`through the generic installed web browser. (D.I. 193 at 12.) This back-up theory also fails.
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`AGIS’s theory requires a user to open the Chrome browser, navigate to a Google FMD server
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`and then choose to put the site in use. This can only happen after the sale of a device to a user,
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`and only if the user chooses to make such use of its mobile web browser. Thus, for the same
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`reason as with the application, the devices as sold simply do not contain the required allegedly
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`infringing functionality. (D.I. 112-2 ¶ 5; D.I. 112-6 ¶¶ 179-81.) And, regardless, there is no
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`dispute that the external web server functionality is never actually installed on the accessing LG
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`device when a user navigates to the FMD site. (Id.; see also D.I. 112 at 12-13.)3
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`AGIS argues that summary judgment is not available because there is an issue as to
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`whether a generic web browser is within the Court’s construction of “forced message alert
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`software application.” First, it is self-evident that a generic browser is not “forced message alert
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`software application.” Dogleg Right Partners, LP v. Taylormade Golf Co., Inc., No. 2:07-cv-
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`533-TJW-CE, 2011 WL 2200668, at *1 (E.D. Tex. June 6, 2011) (“[T]he question of
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`infringement may collapse into one of claim construction and thus is well suited for summary
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`3 AGIS’s expert declined to provide any claim-by-claim analysis specific to functionality
`allegedly accessible through the Chrome browser. (D.I. 112-7, Attachment A).
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`4
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`judgment.”).4 Regardless, however, because AGIS’s browser theory requires a user to choose to
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`use the browser to reach the (remote) functionality necessary to AGIS’s theory, AGIS still
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`cannot show sale of an infringing phone by LG Korea, and summary judgment is appropriate.
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`IV.
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`THE DOCUMENTS AGIS IDENTIFIES FOR THE FIRST TIME IN ITS
`OPPOSITION DO NOT SUPPORT ALLEGED INDIRECT INFRINGEMENT BY
`LG KOREA
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`AGIS does not dispute that FMD (and, previously, ADM) is available for download on
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`and is upgraded through the Google Play Store. (D.I. 193 at 2 (Response to No. 7).) Nor does
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`AGIS dispute that LG Korea is not involved in creating and releasing FMD / ADM Application
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`update packages, which is solely managed by Google. (D.I. 119-3 ¶ 7.) Instead, AGIS attempts
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`to create a new indirect infringement argument by citing to two third-party webpages as
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`supposed evidence that LG Korea “directs users of the LG Accused Devices to use Android
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`Device Manager and Find My Device.” (D.I. 193 at 13 (citing Ex. R and Ex. S).) These
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`documents, however, were not relied upon in AGIS’s Infringement Contentions or
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`McAlexander’s expert report. (Berta Decl.,5 Exs. A, B.; D.I. 112-7).6 Furthermore, the two
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`websites are maintained and controlled by third-party LG Electronics USA, Inc. − not LG Korea.
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`(513 D.I. 46-1 ¶ 15). Neither AGIS nor its technical expert has ever alleged an alter ego theory
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`of liability for indirect infringement, and it was AGIS who elected not to sue any U.S. LG
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`entities. It is far too late for AGIS to attempt to end-run around its own litigation choice as to
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`who to sue. Thus, summary judgment of non-infringement of the ’970 patent is appropriate.
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`4 To extend the reach of the claimed “forced message alert software application” to a generic
`web browser on any device also goes well beyond any disclosure in the ’970 patent.
`5 “Berta Decl.” refers to the Declaration of Michael A. Berta in support of LG Korea’s Reply.
`6 McAlexander did not cite any of the documents (with the exception of Ex. D) that AGIS
`attaches in support of its opposition and therefore cannot rely on these documents at trial.
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`5
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`Dated: February 27, 2019
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`Respectfully Submitted,
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`By: /s/ Michael A. Berta
`J. Mark Mann
`State Bar No. 12926150
`mark@themannfirm.com
`G. Blake Thompson
`State Bar No. 24042033
`blake@themannfirm.com
`MANN TINDEL THOMPSON
`300 West Main St.
`Henderson, Texas 75652
`Tel: 903-657-8540
`Fax: 903-657-6003
`
`Michael A. Berta
`Michael.berta@arnoldporter.com
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`Three Embarcadero Center
`10th Floor
`San Francisco, CA 94111-4024
`Tel: 415-471-3277
`
`Matthew M. Wolf
`ARNOLD & PORTER
`601 Massachusetts Ave, NW
`Washington, DC 20001-3743
`Tel: (202) 942-5000
`Matthew.Wolf@arnoldporter.com
`
`James S. Blackburn
`James.blackburn@arnoldporter.com
`Nicholas H. Lee
`Nicholas.lee@arnoldporter.com
`Justin J. Chi
`Justin.chi@arnoldporter.com
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`777 South Figueroa Street
`44th Floor
`Los Angeles, CA 90017-5844
`Tel: 213-243-4156
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`6
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`Case 2:17-cv-00514-JRG Document 267 Filed 03/04/19 Page 10 of 12 PageID #: 21203
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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`Bonnie Phan
`Bonnie.phan@arnoldporter.com
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`3000 El Camino Real
`Five Palo Alto Square, Suite 500
`Palo Alto, CA 94306-3807
`Tel: 650-319-4500
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`ATTORNEYS FOR DEFENDANT
`LG ELECTRONICS INC.
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`7
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`Case 2:17-cv-00514-JRG Document 267 Filed 03/04/19 Page 11 of 12 PageID #: 21204
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`CERTIFICATE OF SERVICE
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`I hereby certify that counsel of record who are deemed to have consented to electronic
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`service are being served this the 27th day of February, 2019, with a copy of this document via the
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`Court’s CM/ECF system per Local Rule CV-5(a)(3).
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` /s/ Michael A. Berta
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`Michael A. Berta
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`8
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`Case 2:17-cv-00514-JRG Document 267 Filed 03/04/19 Page 12 of 12 PageID #: 21205
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`FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER
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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 paragraphs 26 and 27 of the Protective Order entered in this case.
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` /s/ Michael A. Berta
`Michael A. Berta
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`9
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