Case 2:17-cv-00676-RWS-RSP Document 68 Filed 04/11/18 Page 1 of 6 PageID #: 3934
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`GODO KAISHA IP BRIDGE 1,
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`Plaintiff,
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`Case No. 2:17-cv-00676-RWS-RSP
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`v.
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`INTEL CORPORATION,
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`Defendant.
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` JURY TRIAL DEMANDED
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`IP BRIDGE’S OPPOSITION TO INTEL’S MOTION FOR LEAVE TO FILE A SUR-SUR
`REPLY IN SUPPORT OF INTEL’S MOTION TO DISMISS FOR IMPROPER VENUE
`OR, IN THE ALTERNATIVE, TO TRANSFER TO THE DISTRICT OF OREGON
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`Case 2:17-cv-00676-RWS-RSP Document 68 Filed 04/11/18 Page 2 of 6 PageID #: 3935
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`Plaintiff Godo Kaisha IP Bridge 1 (“IP Bridge”) respectfully submits this opposition to
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`Defendant Intel Corporation’s (“Intel”) Motion for Leave to File a Sur-Sur Reply (“Motion for
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`Leave”). Contrary to Intel’s assertion, IP Bridge did not raise a new argument in its Venue Sur-
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`Reply. The argument that Intel characterizes as “new,” regarding Intel’s Plano facility as of the
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`time IP Bridge’s causes of action accrued, was expressly raised in IP Bridge’s Venue Opposition
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`Brief.1 Intel even responded to that argument in its responsive Reply Brief, and dismissed IP
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`Bridge’s argument as “irrelevant.” Now, however, Intel appears to regret that position and wants
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`a new bite at the apple. Intel’s request to saddle the Court with another round of briefing should
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`be denied for at least three independent reasons.2
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`First, Intel’s argument that IP Bridge allegedly raised a new argument in its Venue Sur-
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`Reply, has no basis in fact. In its Venue Opposition Brief, IP Bridge expressly and properly raised
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`the argument that Intel’s Plano facility established venue, including if analyzed as of the time that
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`IP Bridge’s causes of action accrued. See Dkt. No. 52 at 8 & 10-11. In its Venue Opposition
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`Brief, after explaining that venue may be determined as of the date the plaintiff’s causes of action
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`accrued, IP Bridge argued that “Intel has not disputed that it has committed within this District
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`acts that IP Bridge alleges infringe, nor has it disputed that Intel had regular and established places
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`of business in this District (in Richardson or Plano) when IP Bridge’s causes of action accrued.”
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`See id. at 11 n.6 (emphasis added). Intel’s assertion that this argument was first raised in IP
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`Bridge’s Venue Sur-Reply simply is not true.
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`1 “Venue Opposition Brief” and “Venue Sur-Reply” refer to IP Bridge’s responses to Intel’s
`Motion to Dismiss for Improper Venue or, In the Alternative, To Transfer to the District of Oregon,
`Dkt. Nos. 52 and 64, respectively.
`2 Should the Court decide to consider Intel’s Sur-Sur Reply, IP Bridge alternatively requests that
`the Court grant IP Bridge leave to file a Sur-Sur-Sur Reply, attached as Exhibit A.
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`PLAINTIFF’S OPPOSITION TO INTEL’S MOTION TO LEAVE TO FILE A SUR-SUR REPLY – Page 1
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`Case 2:17-cv-00676-RWS-RSP Document 68 Filed 04/11/18 Page 3 of 6 PageID #: 3936
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`Not only did IP Bridge raise that argument in its Venue Opposition Brief, Intel even
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`responded to that argument in its own reply brief. Instead of addressing the merits of that
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`argument, Intel decided to assert in reply that IP Bridge’s argument was “irrelevant.” See Dkt.
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`No. 59 at 2 n.1 (“Whether this questions is measured . . . when [IP Bridge’s] claims accrued is
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`irrelevant . . . .”). Intel should not now be permitted to burden the Court with additional arguments
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`on a matter it could have addressed, and in fact did address, in its reply brief—when Intel took the
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`position that the matter is “irrelevant.”
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`Second, Intel improperly devotes nearly half of its proposed sur-sur reply to making new
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`legal arguments that it could have and should have made sooner. That tactic is improper and
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`should not be permitted. In its proposed sur-sur reply, Intel argues for the very first time that
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`§1400(b) requires venue to be assessed only as of the filing of suit, and not as of when a cause of
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`action accrued. Intel had never made that legal argument before, even though in IP Bridge’s Venue
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`Opposition Brief, IP Bridge expressly argued that the applicable law allows for venue to be
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`assessed as of the accrual of a cause of action. See Dkt. No. 52 at 1, 8, 10-11. The time for Intel
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`to have addressed IP Bridge’s legal argument was in Intel’s reply brief, not in a proposed sur-sur
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`reply. Accordingly, Intel has waived any argument concerning its interpretation of §1400(b) that
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`it could have made in its reply brief, and Intel should not be permitted now to make that new
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`argument in sur-sur reply. Cf. See Miles Bramwell USA, LLC v. Weight Watchers Int’l, Inc., No.
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`4:12-cv-292, 2013 WL 1797031, at *4 (E.D. Tex. Mar. 27, 2013) (“Legal arguments raised for the
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`first time in a sur-reply, like arguments raised for the first time in a reply, are waived.”) (quotation
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`marks and citation omitted).
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`Third, Intel unjustifiably delayed in seeking leave to file a sur-sur reply. The Local Rules
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`of this District require sur-reply briefs to be filed within seven days of a reply. L.R. CV-7(f). In
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`PLAINTIFF’S OPPOSITION TO INTEL’S MOTION TO LEAVE TO FILE A SUR-SUR REPLY – Page 2
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`Case 2:17-cv-00676-RWS-RSP Document 68 Filed 04/11/18 Page 4 of 6 PageID #: 3937
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`contrast, Intel filed its Motion for Leave thirteen days after IP Bridge served its Venue Sur-Reply,
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`yet provides no explanation or justification for its delay. Intel should not be rewarded for failing
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`to act with diligence.
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`In summary, Intel’s belated motion misleads the Court by asserting that IP Bridge first
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`raised in sur-reply the argument that venue is proper based on Intel’s Plano facility when IP
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`Bridge’s causes of action accrued. Such lack of candor should not be rewarded with the
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`opportunity to provide arguments that Intel should and could have provided in its Reply. To the
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`extent, however, that the Court considers Intel’s proposed sur-sur reply, IP Bridge alternatively
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`requests that the Court grant IP Bridge leave to file its responsive sur-sur-sur reply, attached as
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`Exhibit A.
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`Respectfully submitted,
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`/s/ Jennifer H. Doan
`Jennifer H. Doan
`(TX Bar No. 08809050)
`Joshua R. Thane
`(TX Bar No. 24060713)
`J. Randy Roeser
`(TX Bar No. 24089377)
`Kyle R. Akin
`(TX Bar No. 24105422)
`HALTOM & DOAN
`6500 Summerhill Rd. Ste. 100
`Texarkana, TX 75503-1728
`Telephone: (903) 255-1000
`Facsimile: (903) 255-0800
`jdoan@haltomdoan.com
`jthane@haltomdoan.com
`rroeser@haltomdoan.com
`kakin@haltomdoan.com
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`PLAINTIFF’S OPPOSITION TO INTEL’S MOTION TO LEAVE TO FILE A SUR-SUR REPLY – Page 3
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`Case 2:17-cv-00676-RWS-RSP Document 68 Filed 04/11/18 Page 5 of 6 PageID #: 3938
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`James R. Batchelder
`(CA Bar No. 136347)
`(Eastern District of Texas Member)
`Andrew N. Thomases
`(CA Bar No. 177339)
`(Eastern District of Texas Member)
`Andrew T. Radsch
`(CA Bar No. 303665)
`(Eastern District of Texas Member)
`Christopher M. Bonny
`(CA Bar No. 280554)
`(Eastern District of Texas Member)
`Joseph B. Palmieri
`(CA Bar No. 312725)
`(Eastern District of Texas Member)
`ROPES & GRAY LLP
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303-2284
`Telephone: (650) 617-4000
`Facsimile: (650) 617-4090
`James.Batchelder@ropesgray.com
`Andrew.Thomases@ropesgray.com
`Andrew.Radsch@ropesgray.com
`Christopher.Bonny@ropesgray.com
`Joseph.Palmieri@ropesgray.com
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`Alexander E. Middleton
`(NY Bar No. 4797114)
`(Eastern District of Texas Member)
`ROPES & GRAY LLP
`1211 Avenue of the Americas
`New York, NY 10036-8704
`Telephone: (212) 596-9000
`Facsimile: (212) 596-9090
`Alexander.Middleton@ropesgray.com
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`Attorneys for Godo Kaisha IP Bridge
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`PLAINTIFF’S OPPOSITION TO INTEL’S MOTION TO LEAVE TO FILE A SUR-SUR REPLY – Page 4
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`Case 2:17-cv-00676-RWS-RSP Document 68 Filed 04/11/18 Page 6 of 6 PageID #: 3939
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing sealed document was filed electronically in
`compliance with Local Rule CV-5(a). Pursuant to Local Rule CV-5(c), all counsel of record were
`served a true and correct copy of the foregoing sealed document by electronic mail on this the 11th
`day of April, 2018.
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`/s/ Jennifer H. Doan
`Jennifer H. Doan
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`PLAINTIFF’S OPPOSITION TO INTEL’S MOTION TO LEAVE TO FILE A SUR-SUR REPLY – Page 5
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