Case 2:17-cv-00517-JRG Document 58 Filed 03/05/18 Page 1 of 4 PageID #: 793
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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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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:17-cv-514-JRG
`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`Case No. 2:17-cv-517-JRG
`(CONSOLIDATED CASE)
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`JURY TRIAL DEMANDED
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`AGIS SOFTWARE DEVELOPMENT, LLC,
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`Plaintiff,
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`v.
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`ZTE CORPORATION, ET AL.,
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`Defendants.
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`DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION REGARDING
`DEFENDANTS’ OPPOSED MOTION FOR LEAVE TO
`FILE A SUR-SUR-REPLY BRIEF (Dkt. 54)
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`Defendants ZTE (USA) Inc. and ZTE (TX), Inc. (“ZTA” and “ZTX,” respectively and
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`collectively, “ZTE”) 1 respectfully requested Leave to file a sur-sur-reply (of 3 pages),
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`responding to AGIS’s Sur-reply, to address AGIS’s (1) new argument and (2) AGIS’s inaccurate
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`claim that AGIS alleged, without contest, the “acts of infringement” element of 28 U.S.C. §
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`1400(b). Dkt. 54. In its Response, Dkt. 57, AGIS finally acknowledges that ZTE contested the
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`acts of infringement element of 28 U.S.C. § 1400(b), and thus, that AGIS erroneously said
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`otherwise. Dkt. 57 at 3. In light of this admission, ZTE seeks Leave to respond to AGIS’s sur-
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`reply misrepresentations that ZTE did not contest the “acts of infringement” element of 1400(b).
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`1 Defendant ZTE Corporation has not yet been served or appeared, and the Motion to Dismiss for
`Improper Venue, or in the Alternative to Transfer is therefore on behalf of ZTX and ZTA only.
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`Case 2:17-cv-00517-JRG Document 58 Filed 03/05/18 Page 2 of 4 PageID #: 794
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`AGIS specifically admits that ZTE argued, in ZTE’s Motion to Dismiss for improper
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`venue, that no Defendant has committed acts of infringement. Dkt. 57 at 3 (specifically, AGIS
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`references “[ZTE’s] acts of infringement argument” in ZTE’s opening brief “that no Defendant
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`has committed acts of infringement”) (emphasis added). Indeed, AGIS specifically admits that
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`ZTE argued this issue at least twice in ZTE’s opening brief in the Motion to Dismiss (Dkt. 38),
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`that is, (1) in ZTE’s statement of issues and (2) in ZTE’s introduction. Dkt. 57 at 2-3. Thus,
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`AGIS’s denial of this argument in their venue briefing remains uncorrected. For instance, instead
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`of referencing ZTE’s arguments (or providing applicable case law for ignoring them in their
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`opening brief), AGIS erroneously argued that ZTA did not dispute the acts of infringement
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`allegation. (Dkt. 46 at 15) (emphasis added); see also Dkt. 52 at 2. Thus, AGIS has maintained
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`factually incorrect arguments, and when ZTE suggested a minor revision to correct AGIS’s false
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`allegations, AGIS refused. See Dkt. 54, Ex. A at 7-8. Therefore, a short sur-sur-reply to address
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`this express, and heretofore uncorrected and unaddressed, misrepresentation is warranted here.
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`In its response brief to this motion for leave, AGIS now attempts to distance the
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`discussion from ZTE’s briefing by alleging “lack of adequate briefing” on the acts of
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`infringement element of 1400(b). According to AGIS, arguing twice that the Defendants do not
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`infringe is not sufficient. See Dkt. 57 at 2-3. However, this Court does not require excessive
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`briefing for the “acts of infringement” element of 1400(b). See In re Cordis Corp., 769 F.2d 733 at
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`737 (Fed. Cir. 1985) (“[T]he issue of infringement is not reached on the merits in considering venue
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`requirements”); Intellectual Ventures, 2017 WL 5630023, at *8. Indeed, any more briefing by
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`Defendants, as demanded by AGIS, would reach to the “merits” of the issue of infringement.
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`Accordingly, ZTE respectfully requests leave to file a sur-sur-reply in order to
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`address/correct the uncorrected factual errors in the record from AGIS’s sur-reply brief.
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`2
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`Case 2:17-cv-00517-JRG Document 58 Filed 03/05/18 Page 3 of 4 PageID #: 795
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`Dated: March 5, 2018
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`Respectfully submitted,
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`/s/ Lionel M. Lavenue
`Lionel M. Lavenue
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`Two Freedom Square
`11955 Freedom Drive
`Reston, VA 20190
`Phone: (571) 203-2700
`Fax: (202) 408-4400
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`ATTORNEY FOR DEFENDANTS
`ZTE (USA) Inc. and ZTE (TX), Inc.
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`Case 2:17-cv-00517-JRG Document 58 Filed 03/05/18 Page 4 of 4 PageID #: 796
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of this document via the Court’s
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`CM/ECF system per Local Rule CV-5(a)(3) on this 5th of March, 2018. All other counsel not
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`deemed to have consented to service in such manner will be served via facsimile transmission
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`and/or first class mail.
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`/s/ Lionel M. Lavenue
`Lionel M. Lavenue
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