Case 2:17-cv-00517-JRG Document 76 Filed 07/03/18 Page 1 of 6 PageID #: 1033
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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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`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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`PLAINTIFF’S SUR-SUR-SUR-REPLY IN OPPOSITION TO
`DEFENDANTS’ MOTION 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 76 Filed 07/03/18 Page 2 of 6 PageID #: 1034
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`In accordance with the Court’s June 19, 2018 Order (Dkt. 73), Plaintiff AGIS Software
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`Development, LLC (“AGIS”), by and through its undersigned counsel, hereby submits this Sur-
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`Sur-Sur-Reply.
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`I.
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`AGIS’s Sur-Reply Is Factually Accurate
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`AGIS’s Sur-Reply correctly states that ZTE did not argue in its Motion to Dismiss that
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`the “acts of infringement” requirement of § 1400(b) was not satisfied as to ZTA. Dkt. 52 at 2.
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`ZTE does not dispute that it in its argument section of its Motion, ZTE fully briefed the acts of
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`infringement requirement as to ZTX, but failed to brief the same requirement as to ZTA.
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`Compare Dkt. 38 at 15-16 (Section V.A.2.a, subheading entitled “ZTX has not Committed Acts
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`of Infringement in the District and Does not Maintain A Regular And Established Place Of
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`Business In This District)” with id. at 17-20 (Section V.A.2.b, subheading entitled “ZTA Does
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`not Maintain A Regular And Established Place of Business In This District”). Rather, ZTE
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`argues that it is not required to fully brief the acts of infringement prong—despite doing so for
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`ZTX—and that general statements in its introduction to its Motion to Dismiss (Dkt. 38 at 1)
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`and/or in its Local Rule 7(a)(1) statement of issues (id.) somehow preserve its acts of
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`infringement argument as to ZTA. Dkt. 75 at 1-2. This argument ignores Fifth Circuit precedent
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`that a point asserted, but “not adequately briefed” is waived. Chen v. Ochsner Clinic Found., 630
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`F. App’x 218, 228 (5th Cir. 2015); see also Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.1994);
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`Watson v. Astrue, 2013 WL 6662828, at *2 (E.D. Tex. Dec. 17, 2013) (same).1 As AGIS stated
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`in its Sur-Reply, ZTE’s general statements do not adequately contest AGIS’s allegations that
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`1 In re Cordis Corp., 769 F.2d 733, 737 (Fed. Cir. 1985) and Intellectual Ventures II LLC v. FedEx Corp., No. 2:16-
`cv-980, 2017 WL 5630023, at *8 (E.D. Tex. Nov. 22, 2017), relied upon by ZTE, provide that the merits of whether
`a defendant actually infringed—as opposed to whether the acts of infringement prong has been sufficiently plead to
`defeat a motion to dismiss for improper venue—is determined at trial. In re Cordis, 769 F.2d at 737; Intellectual
`Ventures, 2017 WL 5630023, at *8. These cases do not hold, as ZTE contends, that a defendant preserves its acts of
`infringement argument in a motion to dismiss for improper venue despite failing to fully brief the issue.
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`Case 2:17-cv-00517-JRG Document 76 Filed 07/03/18 Page 3 of 6 PageID #: 1035
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`ZTA committed acts of infringement in this District. ZTE waived its argument that the acts of
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`infringement requirement was not satisfied as to ZTA by failing to include this argument in the
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`substance of its Motion to Dismiss. ZTE’s argument that its passing statements regarding the acts
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`of infringement requirement preserved its argument as to ZTA because there is a “low threshold”
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`for and because “excessive briefing” is not required as to this requirement (Dkt. 75 at 2) is
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`unavailing. To preserve its acts of infringement argument, ZTE was required to provide at least
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`some briefing on this issue (Chen, 630 F. App’x at 228), which it failed to do. Moreover, ZTE’s
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`position regarding the sufficiency of its briefing as to ZTA is directly contradicted by the fact
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`that ZTE fully briefed the acts of infringement requirement as to ZTX. Accordingly, ZTE waived
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`its argument that the acts of infringement requirement was not satisfied as to ZTA and cannot
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`contest this issue for the first time in its Reply or Sur-Sur-Reply. Gillaspy v. Dallas Indep. Sch.
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`Dist., 278 F. App’x 307, 315 (5th Cir. 2008) (“It is the practice of this court and the district
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`courts to refuse to consider arguments raised for the first time in reply briefs”).2
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`II.
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`AGIS Made No New Arguments In Its Sur-Reply
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`AGIS’s Sur-Reply was limited to responses to arguments raised by ZTE in its briefing. In
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`its opposition, AGIS argued that ZTE waived its argument that ZTA did not satisfy the acts of
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`infringement requirement of § 1400(b) by arguing “ZTA does not dispute that it has engaged in
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`infringing activities in this District as alleged in the Amended Complaint.” Dkt. 46 at 15.
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`Indeed, ZTE even attempted to rebut AGIS’s argument in its Reply by arguing for the first time
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`that ZTA denies any acts of infringement. Dkt. 51 at 4; see also id. at 4 n.7 (“AGIS incorrectly
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`alleges that ‘ZTA does not dispute’ infringement . . . .”). In AGIS’s Sur-Reply, AGIS merely
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`2 ZTE’s argument that any “further” briefing regarding the acts of infringement prong as to ZTA would reach the
`“merits” of infringement, which is not required at this stage of litigation (Dkt. 75 at 2-3), is contradicted by its own
`briefing. ZTE fully briefed the acts of infringement prong as to ZTX (Dkt. 38 at 15-17), but failed to do the same
`for ZTA (id. at 17-20).
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`2
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`Case 2:17-cv-00517-JRG Document 76 Filed 07/03/18 Page 4 of 6 PageID #: 1036
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`restated its position from its opposition (Dkt. 46 at 15) that ZTE did not contest the acts of
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`infringement requirement of § 1400(b) as to ZTA, and therefore, it waived that argument (Dkt.
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`52 at 2-3). Accordingly, AGIS’s Sur-Reply contained no new argument nor was any new
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`evidence introduced.
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`III. AGIS’S Allegations Satisfy The Acts of Infringement Requirement of § 1400(b)
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`As AGIS argued in its Sur-Reply, even if ZTE’s untimely argument was to be addressed,
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`AGIS sufficiently alleges that ZTA manufactures, uses, sells, offers for sale, imports, and/or
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`induces the sale of infringing products in this District. See, e.g., Dkt. 52 at 2-3 citing Dkt. 32 ¶ 22
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`(ZTA “manufacture[s], use[s], sell[s], offer[s] for sale, and/or import[s]” infringing electronic
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`devices); id. ¶¶ 27, 36, 49, 62 (ZTA “instructs its customers [including those located in this
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`District] to infringe through training videos, demonstrations, brochures, installations and/or user
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`guides”); id. ¶¶ 48, 61 (ZTA “actively, knowingly, and intentionally induc[es] others to directly
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`infringe, either literally or under the doctrine of equivalents, by making, using, offering to sell,
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`selling and/or importing into the United States the Accused Devices and by instructing users of
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`the Accused Devices to perform methods claimed”). Since “an allegation of infringement-even if
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`contested-is sufficient to establish venue is proper,” AGIS’s allegations satisfy the acts of
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`infringement requirement of § 1400(b). Intellectual Ventures, 2017 WL 5630023, at *8; see In re
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`Cordis, 769 F.2d at 737.
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`IV. CONCLUSION
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`For the foregoing reasons, AGIS respectfully requests that the Court deny Defendants’
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`motion to dismiss, or in the alternative, transfer.
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`Case 2:17-cv-00517-JRG Document 76 Filed 07/03/18 Page 5 of 6 PageID #: 1037
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`Dated: July 3, 2018
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`BROWN RUDNICK LLP
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`/s/ Vincent J. Rubino, III
`Alfred R. Fabricant
`Texas Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@brownrudnick.com
`Alessandra C. Messing
`NY Bar No. 5040019
`Email: amessing@brownrudnick.com
`John A. Rubino NY Bar No. 5020797
`Email: jrubino@brownrudnick.com
`Enrique W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
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`Samuel F. Baxter
`Texas State Bar No. 01938000
`sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`Texas State Bar No. 24012906
`jtruelove@mckoolsmith.com
`McKOOL SMITH, P.C.
`104 East Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: 903-923-9000
`Facsimile: 903-923-9099
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`ATTORNEYS FOR PLAINTIFF,
`AGIS SOFTWARE DEVELOPMENT, LLC
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`Case 2:17-cv-00517-JRG Document 76 Filed 07/03/18 Page 6 of 6 PageID #: 1038
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`CERTIFICATE OF SERVICE
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`I hereby certify that on July 3, 2018 all counsel of record who are deemed to have
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`consented to electronic service are being served with a true and correct copy of this document via
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`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Vincent J. Rubino, III
`Vincent J. Rubino, III
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