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`AGIS Software Development, LLC,
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`ZTE CORPORATION, ZTE (USA) INC.,
`AND ZTE (TX), INC.,
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`Plaintiff,
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`Defendants.
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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-00517-JRG
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`v.
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`DEFENDANTS’ SUR-SUR-REPLY BRIEF IN RESPONSE TO PLAINTIFF’S SUR-
`REPLY (DKT. 52) IN OPPOSITION TO DEFENDANTS’ MOTION (DKT. 38) TO
`DISMISS PLAINTIFF’S COMPLAINT FOR IMPROPER VENUE OR,
`IN THE ALTERNATIVE, TO TRANSFER VENUE
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`Case 2:17-cv-00517-JRG Document 75 Filed 06/26/18 Page 2 of 6 PageID #: 1028
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`In accordance with the Court’s June 19, 2018 Order,1 Defendants ZTE (USA), Inc. and
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`ZTE (TX), Inc. (“ZTA” and “ZTX,” collectively, “ZTE”) 2 submit this Sur-Sur-Reply brief
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`addressing two issues. First, AGIS’s Sur-Reply (Dkt. 52) contains factual errors, which AGIS
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`refused to correct. Second, AGIS’s Sur-Reply brief includes a new argument not included in
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`AGIS’s opening brief (Dkt. 46) based on theories neither relied upon nor disclosed previously.
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`Both of these issues simply stem from AGIS’s erroneous and conclusory rhetoric that
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`blur distinctions between arguing the merits of infringement for a case-in-chief versus arguing
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`the “acts of infringement” requirement of § 1400(b). The “acts of infringement” venue element
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`does not require extensive briefing. See In re Cordis Corp., 769 F.2d 733, 737 (Fed. Cir. 1985)
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`(“[t]he issue of infringement is not reached on the merits in considering venue requirements”);
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`Intellectual Ventures, 2017 WL 5630023, at *8. In two errors, AGIS (1) improperly concludes
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`that ZTE’s briefing on the “acts of infringement” is deficient and (2) that ZTE does not contest
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`the merits of infringement for the case-in-chief. These two allegations are factually incorrect.
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`In the opening venue brief (Dkt. 38), ZTE clearly states that “no Defendant resides,3 has
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`committed alleged acts of infringement, or has a regular and established place of business in this
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`District.” Dkt. 38 at 1 (emphasis added). Further, pursuant to Local Rule 7(a)(1), ZTE further
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`clarified: “the Court should dismiss this patent case under 28 U.S.C. § 1406 for improper venue
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`because the Defendants do not reside in this Judicial District, 4 have not committed alleged acts
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`of infringement in this District, and do not have a regular and established place of business here,
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`1 On June 19, 2018 this Court granted Defendants’ request for leave to file a sur-sur-reply brief in response to the
`sur-reply brief (Dkt. 52) filed by Plaintiff AGIS Software Development, LLC (“AGIS”), regarding Defendants’
`Motion to Dismiss Plaintiff’s Complaint for Improper Venue, or in the Alternative, to Transfer (Dkt. 38).
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` 2
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` ZTE Corporation has not yet been served with the Amended Complaint or appeared in this matter, 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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` 3
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` 4
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` “No Defendant” is defined in the brief as both Defendants ZTE (USA), Inc. and ZTE (TX), Inc.
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` “Defendants” are again defined in the brief as both Defendants ZTE (USA), Inc. and ZTE (TX), Inc.
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`Case 2:17-cv-00517-JRG Document 75 Filed 06/26/18 Page 3 of 6 PageID #: 1029
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`as required to support venue under 28 U.S.C. § 1400.” Dkt. 38 (emphasis added). In addition, in
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`the Reply (Dkt. 51), ZTE unambiguously states again that “ZTA also denies any acts of
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`infringement.” Dkt. 51 at 4. Yet, AGIS fails to consider these arguments and twists ZTE’s
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`positions in the Sur-Reply (Dkt. 52), asserting factual errors, which AGIS has refused to correct.
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`I.
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`AGIS Refused to Correct Factual Errors in the Sur-Reply
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`AGIS’s Sur-Reply brief (Dkt. 52) contains misstatements of fact requiring rectification.
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`AGIS overreaches in its Sur-Reply brief, by incorrectly asserting that it “alleged, without
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`contest, that ZTA manufactures, uses, sells, offers for sale, imports, and/or induces the sale of
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`infringing products in this District.” See Dkt. 52 at 2 (emphasis added). In addition to this
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`incorrect statement on the merits of infringement, AGIS also incorrectly asserts that “Defendants
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`did not argue in its Motion to Dismiss that the ‘acts of infringement’ requirement of 1400(b) was
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`not satisfied.”5 Id. Not only are AGIS’s statements factually incorrect, but they ignore Federal
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`Circuit guidance. As requested by ZTE, these errors should have been corrected by AGIS. 6
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`AGIS ignores precedent setting a low threshold for the “acts of infringement” element of
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`§1400(b), by attempting to transform the discussion from “uncontested” briefing to a “lack of
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`adequate briefing.” Dkt. 57 at 2-3. As already addressed, excessive briefing for the “acts of
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`infringement” element is not required. See In re Cordis Corp., 769 F.2d at 737. ZTE argued
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`twice that Defendants do not infringe, yet this is not sufficient for AGIS. AGIS overzealously
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`states in the Sur-Reply (Dkt. 52) that it “alleged, without contest, that ZTA manufactures, uses,
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`sells, offers for sale, imports, and/or induces the sale of infringing products in this District.” See
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`5 In fact, eventually under protest, AGIS begrudgingly implies that ZTE did contest the “acts of infringement”
`requirement. See Dkt. 57 at 3 (AGIS referencing “[ZTE’s] acts of infringement argument”) (emphasis added).
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` 6
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` ZTE notified AGIS of these issues (and the additional argument) in the Sur-Reply brief (Dkt. 52). See Dkt. 54, Ex.
`A at 8-9. After several days of negotiations, and a meet-and-confer, AGIS still refused on numerous occasions to
`correct the issues regarding the erroneous allegations as to the 1400(b) “acts of infringement.” Id. at 2-3 and 7-8.
`2
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`Case 2:17-cv-00517-JRG Document 75 Filed 06/26/18 Page 4 of 6 PageID #: 1030
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`Dkt. 52 at 2 (emphasis added). AGIS’s statement is untrue. And, any further briefing by ZTE, as
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`demanded by AGIS, would reach the “merits” of infringement, which is not required of ZTE.
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`II.
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`AGIS’S Sur-Reply Includes New Improper Arguments
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`AGIS’s Sur-Reply brief also contains a new argument, which is first raised in the Sur-
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`Reply brief (Dkt. 52) regarding the venue elements of § 1400(b). In the Sur-Reply, AGIS argues
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`that: “Defendants did not argue in its Motion to Dismiss that the ‘acts of infringement’
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`requirement of 1400(b) was not satisfied as to ZTA.” Dkt. 52 at 2. AGIS had not argued this
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`previously, as AGIS’s opposition only referenced the “merits of infringement,” not “acts of
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`infringement” for 1400(b).7 See Dkt. 46 at 15. As ZTE had responded to AGIS’s original
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`argument regarding the merits of infringement, Dkt. 51 at n.7, ZTE’s Reply then confirmed that
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`“ZTA [ ] denies any acts of infringement,” Dkt. 51 at 4. Yet, in the Sur-Reply, AGIS alleged
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`(erroneously) for the first time that ZTA had waived the “‘acts of infringement’ requirement of
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`1400(b)” (Dkt. 52 at 2), which is demonstrably not true. Not only is the statement wrong, but
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`ZTE provided AGIS an opportunity to correct it--which AGIS refused to do. Dkt. 54, Ex. A.
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`AGIS thus improperly added this inaccuracy in its Sur-Reply,8 and the Court should strike it.
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`III. Conclusion - AGIS Should Correct its Errors, Or the Errors Should be Stricken
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`In conclusion, in the Sur-Reply brief, AGIS erred and overstepped with (1) erroneous
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`statements regarding ZTE’s dispute of infringement and (2) a new argument based thereon. ZTE
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`notified AGIS of these errors and requested correction, but AGIS refused. Therefore, AGIS
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`should correct the errors, or the Court should strike them from the briefing on the current record.
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`7 In its opposition brief, AGIS erroneously asserted that “[Defendants] concede[ ] that ZTA engaged, and continues
`to engage, in the infringing activities alleged in the Amended Complaint.” Dkt. 46 at 15. Defendants specifically
`responded to this new argument by AGIS in ZTE’s reply brief, denying any such infringement. See Dkt. 51 at 4.
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` 8
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` In this District, and indeed in this Circuit (the Fifth Circuit), it is clear that a party is prohibited from arguing “new
`information” in replies and sur-replies. See Gillaspy v. Dallas Ind. School Dist., 278 Fed. Appx. 307, 315 (5th Cir.
`2008) (“It is the practice of [the 5th Cir.] to refuse to consider arguments raised for the first time in reply [and sur-
`reply] briefs”); see also Chrimar Sys., Inc. v. Dell, Inc., 2016 WL 9275408, at *1 (E.D. Tex. Feb. 29, 2016).
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`Case 2:17-cv-00517-JRG Document 75 Filed 06/26/18 Page 5 of 6 PageID #: 1031
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`Dated: June 26, 2018
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`Respectfully submitted,
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`/s/ Lionel M. Lavenue
`Lionel M. Lavenue
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`Lionel M. Lavenue (Lead Attorney)
`VA State Bar No. 49,005
`Bradford C. Schulz
`VA State Bar No. 91,057
`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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`ATTORNEYS FOR DEFENDANTS
`ZTE (USA) INC. AND ZTE (TX), INC.
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`Case 2:17-cv-00517-JRG Document 75 Filed 06/26/18 Page 6 of 6 PageID #: 1032
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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 June 26, 2018. All other counsel not deemed
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`to have consented to service in such manner will be served via facsimile transmission and/or first
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`class mail.
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`/s/ Lionel M. Lavenue
`Lionel M. Lavenue
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`5
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