Case 2:21-cv-00072-JRG-RSP Document 144 Filed 09/07/21 Page 1 of 12 PageID #: 3455
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`v.
`
`
`T-MOBILE USA, INC., and T-MOBILE US,
`INC.,
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`v.
`
`
`LYFT, INC.
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`
`
`v.
`
`
`UBER TECHNOLOGIES, INC. d/b/a UBER.
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`
`v.
`
`
`WHATSAPP, INC.,
`
`
`Case No. 2:21-CV-00072-JRG-RSP
`(Lead Case)
`
`Case No. 2:21-CV-00024-JRG-RSP
`(Member Case)
`
`Case No. 2:21-CV-00026-JRG-RSP
`(Member Case)
`
`Case No. 2:21-CV-00029-JRG-RSP
`(Member Case)
`
`DEFENDANT WHATSAPP’S MOTION TO STAY PENDING INTER PARTE
`REVIEWS AND EX PARTE REEXAMINATION
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`

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`Case 2:21-cv-00072-JRG-RSP Document 144 Filed 09/07/21 Page 2 of 12 PageID #: 3456
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`I.
`
`INTRODUCTION
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`All the asserted claims of the six patents asserted against Defendant WhatsApp LLC
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`(“Defendant” or “WhatsApp”) are subject to pre-institution petitions for inter partes review or ex
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`parte reexamination. Accordingly, WhatsApp respectfully requests that this Court stay further
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`proceedings pending the PTO’s resolution of these IPR and reexamination proceedings. Each
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`factor considered for a stay—simplification of issues, stage of the proceedings, and potential undue
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`prejudice to the non-moving party—favors granting a stay.
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`A stay will simplify the issues. This is not a typical pre-institution motion for stay.
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`WhatsApp’s IPRs and the reexamination are particularly likely to succeed based on multiple prior
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`holdings by the Patent Trial and Appeal Board (“PTAB”) of the PTO. Five of the six proceedings
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`are based on petitions that were previously instituted (but terminated upon settlement) or prior art
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`that the PTAB found invalidated similar claims (a decision summarily affirmed the Federal
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`Circuit). Thus, the PTAB has already provided strong signs that the asserted claims in each of
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`AGIS’s asserted patents will be found invalid. In fact, the asserted claims of one of the asserted
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`patents currently stands rejected by the PTO, despite amendment by AGIS. Consequently, even if
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`the claims were to survive, they may not be the same claims as currently asserted. A stay pending
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`resolution of the IPRs and reexamination therefore has a high probability of greatly simplifying—
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`if not completely eliminating—issues that a jury will need to consider.
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`Markman has not yet occurred, and fact and expert discovery are not complete. The
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`Markman hearing is set for October 26, 2021, and jury selection is not until March 7, 2022. No
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`depositions have been taken. As such, now is an ideal time to stay the case before the parties and
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`the Court devote significant resources to Markman, fact discovery, expert discovery, and trial.
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`Plaintiff is not prejudiced by a stay. The Plaintiff, AGIS, is a patent assertion entity that
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`does not compete with WhatsApp, so money damages will adequately compensate it for any
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`1
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`

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`Case 2:21-cv-00072-JRG-RSP Document 144 Filed 09/07/21 Page 3 of 12 PageID #: 3457
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`alleged harm and it will suffer no prejudice and no tactical disadvantage from a stay. Indeed, this
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`Court has already stayed a number of other cases brought by AGIS pending IPRs and ex parte
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`reexamination. See AGIS Software Development LLC v. Google LLC et al., C.A. No. 2:19-cv-
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`00361-JRG, Dkt. No. 219 (Feb. 9, 2021).
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`Because all three factors weigh in favor of a stay, Defendant respectfully requests that the
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`Court stay this action. In the alternative, should the Court conclude that this case does not warrant
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`a stay before the PTO grants institution on the IPRs, Defendant requests the Court deny this Motion
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`without prejudice and with leave to renew the Motion (with expedited briefing) upon the PTAB’s
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`issuance of IPR institution decisions or the PTO’s ordering of ex parte reexamination proceedings.
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`II.
`
`FACTUAL BACKGROUND
`A.
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`Current Proceedings
`
`On January 29, 2021, AGIS filed this lawsuit against WhatsApp asserting six patents: U.S.
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`Patent Nos. 7,031,728 (“the ’728 Patent”), 7,630,724 (“the ’724 Patent”), 9,408,055 (“the ’055
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`Patent”), 9,445,251 (“the ’251 Patent”), 9,467,838 (“the ’838 Patent”), and 9,749,829 (“the ’829
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`Patent”) (collectively, the “Asserted Patents”).
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`On May 19, 2021, AGIS served its infringement contentions, and on July 21, 2021,
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`WhatsApp served its invalidity contentions. Given that AGIS had identified over 200 claims in
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`its preliminary infringement contentions, on August 6, 2021, the parties agreed to focus the number
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`of patent claims and prior art. Accordingly, on August 24, 2021, AGIS narrowed the number of
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`asserted claims to the following:
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`Patent
`U.S. Patent No. 7,031,728
`U.S. Patent No. 7,630,724
`U.S. Patent No. 9,408,055
`U.S. Patent No. 9,445,251
`U.S. Patent No. 9,467,838
`
`Asserted Claims
`7
`9, 10, 12, 13, 15
`3, 10
`5, 6, 7, 22, 23 24, 25, 29, 30. 35
`55, 56, 58, 60, 61, 644, 65, 66, 67, 84
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`2
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`

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`Case 2:21-cv-00072-JRG-RSP Document 144 Filed 09/07/21 Page 4 of 12 PageID #: 3458
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`U.S. Patent No. 9,749,829
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`1, 4, 7, 12, 13, 15, 16, 30, 32, 34
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`There is a significant amount of work left to be done in the case. Venue is still in dispute,
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`with a hearing set for September 15, 2021. Dkt. Nos. 63, 82, 88. No depositions have been taken.
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`The Markman hearing is set for October 26, 2021, and jury selection is not until March 7, 2022.
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`Dkt. No. 80.
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`B.
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`Prior PTAB Rulings on AGIS’s Asserted Patents
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`The PTAB has already made findings in prior IPR petitions that cast grave doubt on the
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`validity of the Asserted Patents.
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`’055, ’838, ’251, and ’829 Patents: Broken Priority Chain
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`The PTAB determined the appropriate priority date for the ’055, ’838, ’251, and ’829
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`Patents is October 31, 2014, and not the date claimed on the face of the patents—and asserted by
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`AGIS—of September 21, 2004. As a result, AGIS’s own patent in the chain of priority (the ’724
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`Patent) is prior art. Specifically, the PTAB found that the four asserted patents’ priority claim was
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`broken by intervening U.S. Patent No. 8,880,042 (“’042 Patent”), which failed to properly claim
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`priority to the ’724 Patent. See Ex. H at 23 (finding AGIS failed to incorporate a predecessor
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`patent by reference for the ’055 Patent); Ex. I at 26 (same for the ’251 Patent); Ex. J at 19 (same
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`for the ’838 Patent); Ex. K at 14 (same for the ’829 Patent). The PTAB thus found AGIS failed to
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`meet its burden that its patents were entitled to a priority date earlier than October 31, 2014. Id.
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`As the PTAB noted, if “any application in the priority chain fails to make the requisite disclosure
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`of subject matter, the later-filed application is not entitled to the benefit of the filing date of
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`applications preceding the break in the priority chain.” Id. at 12.
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`3
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`Case 2:21-cv-00072-JRG-RSP Document 144 Filed 09/07/21 Page 5 of 12 PageID #: 3459
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`ʼ055, ’838, ’829 Patents: Invalidity
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`Many of claims in the ’055 Patent have already been found invalid by the PTAB in a
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`decision that was summarily affirmed by the Federal Circuit. On December 2, 2019, the PTAB
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`issued a Final Written Decision finding that Google had shown, by a preponderance of the
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`evidence, that claims 1, 2, 5–7, 14, 15, 17, 21–25, 27, 28, 30, 32–34, 36, 37, 40–43, 45, 49, and 54
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`of the ʼ055 Patent are unpatentable. See Ex. C. The PTAB concluded that the claims were obvious
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`over U.S. Patent No. 6,366,782 (“Fumarolo”), U.S. Publication No. 2004/0054428 (“Sheha”), U.S.
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`Publication No. 2004/0157590 (“Lazaridis”), U.S. Publication No. 2005/0221876 (“Van Bosch”),
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`and U.S. Publication No. 2002/0027901 (“Liu”). Id. at 33, 35, 39, 46. The Federal Circuit issued
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`an affirmance pursuant to Fed. Cir. R. 36 on February 4, 2021. AGIS Software Development, LLC
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`v. Google LLC, 835 F. App’x 607 (Fed. Cir. 2021).
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`On May 15, 2020, Google challenged the surviving claims of the ’055 Patent in a request
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`for ex parte reexamination, asserting the same grounds of invalidity. See Ex. G. All the challenged
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`claims currently stand rejected by the PTO. Id. at 45.
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`The PTAB also found that Apple showed in its IPRs a likelihood of success in invalidating
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`two of AGIS’s Asserted Patents, the ʼ838 and ʼ829 Patents. Apple had filed an IPR petition
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`challenging the patentability of claims 1–84 of the ʼ838 Patent using the predecessor ’724 Patent
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`as prior art. See Ex. I. After concluding the priority date was October 31, 2014, the PTAB
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`determined that Apple had shown a likelihood of success in proving the invalidity of at least claims
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`1, 54, 55, and 84. Id. at 36. Similarly, for the ’829 Patent, the PTAB found that Apple
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`demonstrated a reasonable likelihood that at least claim 1 was unpatentable in light of the
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`predecessor ’724 Patent. Ex. K at 28. Apple’s IPRs were terminated only because Apple and
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`AGIS reached a settlement.
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`4
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`Case 2:21-cv-00072-JRG-RSP Document 144 Filed 09/07/21 Page 6 of 12 PageID #: 3460
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`C.
`
`Current IPR and Ex Parte Reexaminations
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`WhatsApp now challenges the ’728 and ’724 Patents on essentially the same grounds that
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`successfully invalidated the previously asserted claims of the ’055 Patent before the PTAB. And
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`WhatsApp challenges the claims of the ’838 and ’829 Patents on grounds including AGIS’s own
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`’724 Patent, based on the same petitions that Apple previously filed, and the PTAB instituted. The
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`status of all six patents stands as follows.
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`ʼ055 Patent
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`The PTAB has invalidated claims 1, 2, 5–7, 14, 15, 17, 21–25, 27, 28, 30, 32–34, 36, 37,
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`40–43, 45, 49, and 54 in an IPR filed by Google, based on Fumarolo, Sheha, Lazaridis, Van Bosch,
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`and Liu. Ex. C. This decision was affirmed by the Federal Circuit. AGIS Software Development,
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`LLC v. Google LLC, 835 F. App’x 607 (Fed. Cir. 2021). The remaining claims are currently
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`subject to ex parte reexamination filed by Google, asserting the same grounds of invalidity. See
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`Ex. G. On April 7, 2021, AGIS filed a response to office action, amending a number of claims,
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`including claims 3 and 10 currently asserted against WhatsApp. Id. at 134-135. On June 11, 2021,
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`the PTO issued a final rejection of all remaining claims. Id. at 45.
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`ʼ728 Patent
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`On June 24, 2021, WhatsApp filed a petition for inter partes review challenging claim 7
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`of the ’728 Patent based on Fumarolo, Sheha, and Van Bosch. Ex. A. Notably, WhatsApp argues
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`that AGIS is collaterally estopped given that the PTAB already found that the references disclose
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`the limitations, which are also found in the ’055 Patent. Id. at 18-22.
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`ʼ724 Patent
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`On June 24, 2021, WhatsApp filed a petition for inter partes review challenging claims 9,
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`10, 12, 13, and 15 of the ’728 Patent based on Fumarolo, Sheha, and Lazaridis. Ex. B. Notably,
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`5
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`Case 2:21-cv-00072-JRG-RSP Document 144 Filed 09/07/21 Page 7 of 12 PageID #: 3461
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`WhatsApp argues that AGIS is collaterally estopped given that the PTAB already found that the
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`references disclose the limitations, which are also found in the ’055 Patent. Id. at 20-24.
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`ʼ838 Patent
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`On July 30, 2021, WhatsApp filed a petition for inter partes review challenging claims 1–
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`84 of the ʼ838 Patent relying on the same priority date argument and primary prior art reference
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`that the PTAB considered in instituting Apple’s IPR petition. See Ex. E. Specifically, WhatsApp
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`argues the claims are obvious in light of the ’724 Patent. Id.
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`ʼ829 Patent
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`On August 27, 2021, less than a week after AGIS narrowed the number of asserted claims,
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`WhatsApp filed a petition for inter partes review challenging claims 1, 4, 7-13, 15-16, 30-32, and
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`34 of the ʼ829 Patent relying on the same priority date argument and primary prior art reference
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`that the PTAB considered in instituting Apple’s IPR petition. See Ex. F. Specifically, WhatsApp
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`argues the claims are obvious in light of the ’724 Patent. Id.
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`ʼ251 Patent
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`On September 3, 2021, a little more than a week after AGIS narrowed the number of
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`asserted claims, WhatsApp filed a petition for inter partes review challenging claims 1-3, 5-7, 9,
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`12, 22-26, 28-30, 32, and 35 of the ’251 Patent. WhatsApp again relies on the priority chain
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`argument that the PTAB adopted in Apple, making the relevant priority date October 31, 2014.
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`See Ex. C. WhatsApp argues that the prior art establishes that claims 1-3, 5-7, 9, 12, 22-26, 28-
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`30, 32, and 35 of the ’251 Patent were obvious as of the effective filing date, in light of U.S. Patent
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`Application Publication No. 2012/0008526 to Borghei (“Borghei”), U.S. Patent No. 7,450,003 to
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`Weber (“Weber”), and Liu. Id.
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`6
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`Case 2:21-cv-00072-JRG-RSP Document 144 Filed 09/07/21 Page 8 of 12 PageID #: 3462
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`III. LEGAL STANDARD
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`District courts typically consider three factors when determining whether to grant a stay
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`pending IPR or ex parte reexamination of a patent in suit: (1) whether the stay will unduly
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`prejudice the non-moving party; (2) whether the proceedings before the court have reached an
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`advanced stage, including whether discovery is complete and a trial date has been set; and (3)
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`whether the stay will likely result in simplifying the case before the court. See NFC Techs. LLC
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`v. HTC Am., Inc., No. 2:13-cv-1058-WCB, 2015 WL 1069111, at *2 (E.D. Tex. Mar. 11, 2015)
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`(Bryson, J.); KIPB LLC v. Samsung Elecs. Co., No. 2:19-CV-00056-JRG-RSP, 2019 WL 6173365,
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`at *1 (E.D. Tex. Nov. 20, 2019) (“While these factors pertain to stays pending inter partes review,
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`the analysis is substantially the same for ex parte reexamination proceedings.”). “Based on th[ese]
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`factors, courts determine whether the benefits of a stay outweigh the inherent costs of postponing
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`resolution of the litigation.” NFC, 2015 WL 1069111, at *2.
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`IV. ARGUMENT: ALL THREE FACTORS FAVOR A STAY
`A.
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`The Stay Will Likely Simplify This Case
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`“The most important factor bearing on whether to grant a stay in this case is the prospect
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`that the [invalidity] proceeding will result in simplification of issues before the Court.” Intellectual
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`Ventures II LLC v. BITCO Gen. Ins. Corp., No. 6:15-CV-59, 2016 WL 4394485, at *3 (E.D. Tex.
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`May 12, 2016). Any claim canceled by the PTO during an IPR or ex parte reexamination is
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`rendered void ab initio. See Fresenius USA, Inc. v. Baxter Int’l, Inc., 721 F.3d 1330, 1346 (Fed.
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`Cir. 2013). Thus, cancellation of all the asserted claims would completely resolve this case, and
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`cancellation of some asserted claims would reduce the number of claims remaining for trial.
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`The likelihood of simplification favors entry of a stay in this case, because all asserted
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`claims of the Asserted Patents are likely to be canceled. Here, the PTAB will almost certainly find
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`that the ’838, ’251, and ’829 Patents are entitled to a priority date no earlier than October 31, 2014,
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`7
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`Case 2:21-cv-00072-JRG-RSP Document 144 Filed 09/07/21 Page 9 of 12 PageID #: 3463
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`as the PTAB previously found. Further, the PTAB has already invalidated numerous claims of the
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`ʼ055 following IPR petitions filed by Google, and the remaining challenged claims, as well as the
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`claims of the ’728 and ’724 Patents are likely to be invalidated on the same grounds. Moreover,
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`the PTAB has already previously instituted IPR on the ’838 and ’829 Patents, and it is highly likely
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`to be instituted on the same grounds.
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`While this Court often waits until after institution of IPRs or ordering of ex parte
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`reexaminations to grant a stay, there is no need to wait so long here. In view of the unique history
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`of past IPR challenges against AGIS’s patents, there is an extremely high likelihood that the PTO
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`will institute IPR proceedings, and a very high likelihood that the PTO will invalidate all
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`challenged claims of the Asserted Patents. Further, ex parte reexamination of the ’055 Patent has
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`already been ordered, and in fact, the asserted claims of the ’055 Patent have already been amended
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`and rejected. Thus, there is a high likelihood of simplification, if not complete resolution, of this
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`litigation, which strongly favors a stay.1
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`Finally, staying this case until all the IPRs and the reexamination are complete would
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`promote judicial economy and avoid potentially wasteful discovery efforts. See, e.g., NFC, 2015
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`WL 1069111, at *4 (“Many discovery problems relating to prior art can be alleviated by the PTO
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`examination.”).
`
`
`1 Even in the unlikely scenario that every single one of the asserted claims survives IPRs or ex
`parte reexamination without amendment, a stay is still likely to simplify the case. For example,
`AGIS’s submissions to the PTO can narrow the scope of any claims that survive review. See, e.g.,
`Aylus Networks, Inc. v. Apple Inc., 856 F.3d 1353, 1362 (Fed. Cir. 2017) (“[S]tatements made by
`a patent owner during an IPR proceeding, whether before or after an institution decision, can be
`considered for claim construction and relied upon to support a finding of prosecution disclaimer.”).
`Thus, the file histories of all of the Asserted Patents—and the scope of their claims—will remain
`in flux until the IPRs and reexaminations are complete. Indeed, the asserted claims of the ’055
`Patent have already been amended. Accordingly, it makes sense to stay this case pending
`resolution of the IPRs and reexamination to prevent duplicative and potentially conflicting results.
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`8
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`Case 2:21-cv-00072-JRG-RSP Document 144 Filed 09/07/21 Page 10 of 12 PageID #: 3464
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`In summary, a stay pending completion of the IPRs and reexamination would resolve or
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`significantly simplify issues under any outcome of the proceedings, whether the claims are
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`affirmed, canceled, or amended (as already evidenced in the ex parte reexamination for the ’055
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`Patent). Therefore, this factor weighs strongly in favor of a stay.
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`B.
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`Now Is The Ideal Time To Stay The Case
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`The most significant work in this case is still to be done. Venue is still in dispute, with a
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`hearing set for September 15, 2021. Dkt. Nos. 63, 82, 88. No depositions have been taken. The
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`Markman hearing is set for October 26, 2021, and jury selection is not until March 7, 2022. Dkt.
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`No. 80. The case is ripe for a stay before the parties or the Court expends additional resources on
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`discovery and claim construction. Because “the bulk of the expenses that the parties would incur
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`. . . are still in the future,” the stage-of-the-litigation factor favors a stay. NFC, 2015 WL 1069111
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`at *3.
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`C.
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`AGIS Will Not Suffer Undue Prejudice or Tactical Disadvantage
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`AGIS will not be prejudiced by a stay. AGIS is a patent assertion entity that does not
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`compete with WhatsApp. AGIS can be fully compensated for any alleged harm by monetary
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`damages. See VirtualAgility Inc. v. Salesforce.com, Inc., 759 F.3d 1307, 1318 (Fed. Cir. 2014)
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`(noting “[a] stay will not diminish the monetary damages to which [Plaintiff] will be entitled if it
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`succeeds in its infringement suit—it only delays realization of those damages”); SSL Servs., LLC
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`v. Cisco Sys., Inc., No. 2:15-CV-433-JRG-RSP, 2016 WL 3523871, at *2 (E.D. Tex. June 28,
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`2016) (“Where a plaintiff seeks only money damages, a stay will not diminish the monetary
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`damages to which plaintiff will be entitled if it succeeds”) (internal quotation marks and alterations
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`omitted); see also NFC, 2015 WL 1069111, at *2 (noting reasonable and timely access is a “factor
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`[] present in every case in which a patentee resists a stay, and it is therefore not sufficient, standing
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`alone, to defeat a stay motion”). Accordingly, where “the only potential prejudice Plaintiff faces
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`Case 2:21-cv-00072-JRG-RSP Document 144 Filed 09/07/21 Page 11 of 12 PageID #: 3465
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`is the delay in litigating its patent rights—a minimal prejudice present in every case in which a
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`stay is sought[—][w]ithout more, the Court finds that the first factor weighs slightly in favor of
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`granting the stay.” Parallel Networks Licensing, LLC v. Ramquest Software, Inc., No. 4:19-CV-
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`487, 2020 WL 1236266, at *1 (E.D. Tex. Mar. 13, 2020).
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`V.
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`CONCLUSION
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`For the foregoing reasons, WhatsApp respectfully requests the Court stay this litigation
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`pending the resolution of IPR and ex parte reexamination proceedings. In the alternative, should
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`the Court conclude this case does not warrant a stay before institution of the IPRs, WhatsApp
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`requests the Court deny this Motion without prejudice and with leave to renew the Motion (with
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`expedited briefing) upon the PTO’s issuance of its decisions. When the PTAB has instituted
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`review, “courts have been nearly uniform in granting motions to stay.” Cellular Commc’ns Equip.,
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`LLC v. Samsung Elecs. Co., No. 6:14-CV-759, 2015 WL 11143485, at *3 (E.D. Tex. Dec. 16,
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`2015); see Cypress Lake Software, Inc. v. Samsung Elecs. Am., Inc., No. 6:18-cv-00030-JDK, Dkt.
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`454 at 13 (granting stay following institution of IPRs and ordering of ex parte reexaminations
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`because “it is virtually a statistical certainty that some claims will be invalidated, changed, or
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`cancelled”). Given courts’ typical practice of granting post-institution motions to stay pending
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`IPR and post-grant motions to stay pending reexaminations and the anticipated timing of the PTO’s
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`decisions relative to the trial date, expedited briefing on staying this case post-institution is
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`appropriate.
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`10
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`Case 2:21-cv-00072-JRG-RSP Document 144 Filed 09/07/21 Page 12 of 12 PageID #: 3466
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`Date: September 7, 2021
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`
`
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`Respectfully submitted,
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`/s/ Lisa K. Nguyen, with permission by
`Michael E. Jones
`
`
`Michael E. Jones (SBN: 10929400)
`Patrick C. Clutter (SBN: 24036374)
`POTTER MINTON, PC
`110 North College, Suite 500
`Tyler, Texas 75702
`Tel: 903-597-8311
`Fax: 903-593-0846
`mikejones@potterminton.com
`patrickclutter@potterminton.com
`
`Lisa K. Nguyen
`Richard G. Frenkel
`Clara Wang
`Miriam G. Cabello
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 94025-1008
`Tel: (650) 328-4600 / Fax: (650) 463-2600
`lisa.nguyen@lw.com
`rick.frenkel@lw.com
`clara.wang@lw.com
`mia.cabello@lw.com
`
`Alan Billharz
`Tiffany C. Weston
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`Tel: (202) 637-2200 / Fax: (202) 637-2201
`alan.billharz@lw.com
`tiffany.weston@lw.com
`
`Attorneys for Defendant WhatsApp LLC
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`CERTIFICATE OF CONFERENCE
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`The undersigned hereby certifies that counsel for Defendants has complied with the meet
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`and confer requirement in Local Rule CV-7(h). This motion is opposed. The personal conference
`required by Local Rule CV-7(h) was conducted on September 3, 2021 via telephone conference
`with the following participants: Clara Wang for Defendant WhatsApp and Amy Park for Plaintiff
`AGIS. Counsel for Plaintiff indicated they are opposed to the relief sought in this motion.
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`
`
`/s/ Lisa Nguyen, with permission by
`Michael E. Jones
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`11
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