Case 2:19-cv-00118-JRG Document 62 Filed 01/14/20 Page 1 of 8 PageID #: 1102
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`QUEST NETTECH CORPORATION,
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`Plaintiff,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:19-cv-00118-JRG
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`JURY TRIAL DEMANDED
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`PLAINTIFF QUEST NETTECH CORPORATION’S SUR-REPLY
`IN FURTHER OPPOSITION TO APPLE INC.’S MOTION FOR
`LEAVE TO SUPPLEMENT ITS INVALIDITY CONTENTIONS (DKT. 58)
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`Defendant.
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`v.
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`APPLE INC.,
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`Case 2:19-cv-00118-JRG Document 62 Filed 01/14/20 Page 2 of 8 PageID #: 1103
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`Plaintiff Quest NetTech Corporation (“NetTech” or “Plaintiff”) respectfully submits this
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`Sur-Reply in Further Opposition to Apple Inc.’s (“Apple” or “Defendant”) Motion for Leave to
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`Supplement Its Invalidity Contentions (Dkt. 58).
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`I.
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`INTRODUCTION
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`Apple’s reply fails to remedy the deficiencies of its opening brief. Apple has not shown
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`how NetTech’s infringement contentions or Pitroda’s nonstandard language caused Apple to
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`miss the deadline to disclose the Pitroda reference by three months. Apple’s changing account of
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`how it located and evaluated Pitroda and its refusal to disclose its search criteria and the timeline
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`of the search prevent it from meeting its burden to show diligence. Given that the Pitroda
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`reference is cumulative of five other references, and that Apple may ultimately litigate invalidity
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`under Pitroda in the Patent Trial and Appeal Board, Apple cannot show good cause to
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`supplement its invalidity contentions in this Court with the Pitroda reference.
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`II.
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`ARGUMENT
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`A.
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`Apple Has Not Shown Diligence in Locating Pitroda or Delivering It to
`NetTech
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`Apple’s reply brief again fails to demonstrate that it diligently located and disclosed the
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`Pitroda reference. First, Apple presents no evidence supporting its argument that NetTech’s
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`assertion of certain patent claims, which it later withdrew before the Pitroda reference was found,
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`had prevented Apple from locating Pitroda earlier. The mere fact that Pitroda was found after
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`claims 1-3 and 5-7 were withdrawn does not establish a causal relationship. Quite the opposite,
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`this argument is undermined by the fact that Apple located five allegedly anticipatory references
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`and disclosed them in their infringement contentions before NetTech dropped these claims. If the
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`dropped claims prevented Apple from locating Pitroda in a timely fashion, they should also have
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`Case 2:19-cv-00118-JRG Document 62 Filed 01/14/20 Page 3 of 8 PageID #: 1104
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`prevented Apple from locating the five references which supposedly anticipate the remaining
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`claims. Apple has no explanation for this flaw in its argument.
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`Second, Apple’s argument that its delay is justified based on NetTech’s “vague”
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`infringement contentions is not credible because Apple does not identify a single specific aspect
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`of the infringement contentions that was so vague that it prevented Apple from conducting an
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`effective prior art search.1 While it is commonplace for a defendant to send a letter with alleged
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`deficiencies in a plaintiff’s infringement contentions, Apple never pursued the issue and was able
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`to identify dozens of prior art references in its invalidity contentions despite the supposed
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`vagueness. Again, Apple established neither that the infringement contentions were vague nor
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`that this undisclosed vagueness prevented it from locating Pitroda in a timely way.
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`Third, Apple changes its argument concerning its delay in disclosing Pitroda. On reply,
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`Apple states for the first time that Pitroda’s allegedly idiosyncratic language “delayed
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`examination” of Pitroda. See Dkt. 61 at 4. This contradicts Apple’s opening argument that
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`Pitroda’s “nonstandard terms” made Pitroda “more difficult to find via the practical automated
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`tools that searchers use to filter the flood of potential prior art.” Dkt. 58 at 7. In any event, the
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`issue is not whether Pitroda uses language that is different from the language in the other
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`references, but whether such language made it undiscoverable or delayed Apple from examining
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`it. It did not. For instance, a reference that Apple disclosed in its infringement contentions, U.S.
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`Patent No. 4,900,903 (“Wright”), does not include the words “smart card,” “integrated circuit
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`card,” “IC card,” “payment card,” “contactless card,” or “chip card,” which Apple insists are
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`“better-known terms.” Dkt. 61 at 4. Yet, Apple was able to discover Wright and timely disclose
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`1 Apple attempts to blame NetTech for Apple’s decision not to escalate any alleged deficiencies to the
`Court because of NetTech’s delay in reviewing source code. Even if NetTech did delay in its review of
`source code, this argument is irrelevant to Apple’s search for prior art and does not address its lack of
`diligence. Apple has consistently avoided a proper detailed explanation for its delay in discovering and
`disclosing Pitroda.
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`Case 2:19-cv-00118-JRG Document 62 Filed 01/14/20 Page 4 of 8 PageID #: 1105
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`it to NetTech even. This undermines Apple’s argument that the absence of those “better-known
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`terms” in Pitroda prevented it from timely examining Pitroda.
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`The inquiry into this good-cause factor is hindered by Apple’s refusal to disclose its
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`search methodology as evidence of its diligence or to provide a clear timeline of the events
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`leading to the late disclosure of Pitroda. If that evidence were favorable to Apple, one would
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`assume Apple would have disclosed it. A self-proclaimed “delayed examination” of Pitroda is an
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`insufficient reason to grant Apple’s motion. See Innovative Display Techs. v. Acer Inc., No. 2:13-
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`cv-00522-JRG, Dkt. 71 at 3 (E.D. Tex. June 19, 2014) (“That it took Defendants more time
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`beyond the original deadline to find these new arts, in and of itself, is no excuse for a late
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`supplementation. To hold otherwise would ‘render the explanation for the party’s failure to meet
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`the deadline a non-factor.’”) (citation omitted).
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`Apple likens this case to Optis Wireless Tech., LLC v. Huawei Techs. Co. Ltd., No. 2:17-
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`cv-00123-JRG, Dkt. 119 (E.D. Tex. Jan. 26, 2018), but in Optis, the Court granted the
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`defendant’s motion for leave to supplement invalidity contentions because the defendant
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`provided a detailed account of its diligence by recounting the dates it communicated with its
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`search firms and reviewed the relevant reference. Apple has never disclosed its search terms or
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`the dates it examined Pitroda. The Court also noted the defendant’s promptness in bringing the
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`additional reference to the attention of the Court within 21 days after discovering the reference.
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`See Optis Wireless, No. 2:17-cv-00123-JRG, Dkt.135 at 2. Here, Apple discovered Pitroda on
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`October 29, 2019, and filed its motion on December 17, 2019, nearly two months later. In
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`addition, the defendant notified the opposing party of its discovery eight days later, while Apple
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`notified NetTech over one month after it identified Pitroda.
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`For these reasons, the first factor weighs strongly against a finding of good cause.
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`Case 2:19-cv-00118-JRG Document 62 Filed 01/14/20 Page 5 of 8 PageID #: 1106
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`B.
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`Apple Has Not Shown That Pitroda is Important
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`Apple has failed to meet its burden of proof in showing importance. Apple offers no
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`evidence that Pitroda is important as compared to the other references it timely disclosed. See
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`Blue Calypso, No. 6:12-cv-486-JRG, Dkt. 317 at 2 (E.D. Tex. Aug. 6 2015) (finding that the
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`defendants could not meet the importance factor where there were other references in the suit
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`“that allegedly anticipate the patent in suit, yet, [the defendants] go to no length to explain why
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`the patent in question is better than those references.”) (emphasis added). If Pitroda is
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`anticipatory in ways that are noncumulative, Apple must explicitly lay out this argument on
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`importance because it bears the burden of proof on this issue. Simply stating that a reference is
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`important without evidentiary support is insufficient. See Innovative Display, No. 2:13-cv-
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`00522-JRG, Dkt. 71 at 3 (finding that it could not determine importance based on defendants’
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`conclusory argument that the prior art is important and provides “unique ground” for anticipation
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`and obviousness). Apple relies on the fact that it provided a 42-page claim chart to show how
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`Pitroda anticipates or renders obvious each limitation of each asserted claim. However, this is not
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`dispositive, as this Court has denied a motion to supplement invalidity contentions where the
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`defendants had a 40-page amended invalidity contentions and 280-page claim chart. See id. This
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`Court held that the defendants did not explain in their motion, “the subject matter of the four new
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`arts, much less how [those] arts, if supplemented to the original Infringement Contentions, would
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`render a particular patent invalid.” Id. Similarly, Apple failed to provide this information in its
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`motion.
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`Apple attempts to downplay the importance of its refusal to commit to litigating
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`invalidity in this Court. If an inter partes review based on Pitroda is filed, Apple will
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`undoubtedly seek to stay the case pending the review. This will make Pitroda unimportant to the
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`Case 2:19-cv-00118-JRG Document 62 Filed 01/14/20 Page 6 of 8 PageID #: 1107
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`instant case. If Apple will seek to litigate invalidity under Pitroda in a different venue, Pitroda is
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`not important to this case, and this factor weighs against a finding of good cause.
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`C.
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`NetTech Will be Prejudiced by a Supplement to Apple’s Invalidity
`Contentions
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`On reply, Apple misstates NetTech’s argument on prejudice by stating that NetTech had
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`argued that “supplementation would prevent [NetTech] from addressing Pitroda in its claim
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`constructions.” Dkt. 61 at 6. In fact, NetTech argued that the claim construction process may
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`need to be revisited based on the inclusion of the Pitroda reference. Apple does not dispute this
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`point but merely argues that “plenty of time remains in the schedule” for revisiting claim
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`construction. This argument is relevant to whether a continuance would remedy the prejudice—it
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`fails to demonstrate that no prejudice will be suffered. As such, the third factor weighs against a
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`finding of good cause.
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`III. CONCLUSION
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`For the foregoing reasons, NetTech respectfully requests that the Court deny Apple’s
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`Motion for Leave to Supplement its Invalidity Contentions (Dkt. 58).
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`Dated: January 14, 2020
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`Respectfully Submitted,
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`BROWN RUDNICK LLP
`
` /s/ Alfred R. Fabricant
`Alfred R. Fabricant
`NY 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
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
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`Case 2:19-cv-00118-JRG Document 62 Filed 01/14/20 Page 7 of 8 PageID #: 1108
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`Telephone: (212) 209-4800
`Facsimile: (212) 209-4801
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`Justin Kurt Truelove
`Texas Bar No. 24013653
`Email: kurt@truelovelawfirm.com
`TRUELOVE LAW FIRM, PLLC
`100 West Houston
`Marshall, Texas 75670
`Telephone: (903) 938-8321
`Facsimile: (903) 215-8510
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`ATTORNEYS FOR PLAINTIFF
`QUEST NETTECH CORPORATION
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`Case 2:19-cv-00118-JRG Document 62 Filed 01/14/20 Page 8 of 8 PageID #: 1109
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on January 14, 2020, all counsel of record who are
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`deemed to have consented to electronic service are being served with a 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/ Alfred R. Fabricant
` Alfred R. Fabricant
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