Case 2:21-cv-00072-JRG-RSP Document 172 Filed 10/20/21 Page 1 of 15 PageID #: 5843
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Plaintiff,
`
`v.
`
`T-MOBILE USA, INC. and T-MOBILE US,
`INC.,
`
`
`
`UBER TECHNOLOGIES, INC., d/b/a UBER,
`
`Defendants.
`
`§
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`
`Case No. 2:21-cv-00072-JRG
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
`
`Case No. 2:21-cv-00072-JRG
`(MEMBER CASE)
`
`JURY TRIAL DEMANDED
`
`
`DEFENDANT UBER TECHNOLOGIES, INC.’S MOTION TO STRIKE PLAINTIFF’S
`FIRST AMENDED DISCLOSURE OF ASSERTED CLAIMS AND INFRINGEMENT
`CONTENTIONS
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`

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`Case 2:21-cv-00072-JRG-RSP Document 172 Filed 10/20/21 Page 2 of 15 PageID #: 5844
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`Introduction ........................................................................................................................ 1
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`Factual Background ........................................................................................................... 1
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`III.
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`Argument ........................................................................................................................... 3
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`A.
`
`B.
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`AGIS’s Infringement Allegations Related to Storing User Phone Numbers Are
`Internally Inconsistent. ........................................................................................... 5
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`AGIS’s Infringement Allegations Related to Exchanging IP Addresses Are
`Similarly Inconsistent. ........................................................................................... 8
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`Conclusion ....................................................................................................................... 10
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`IV.
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`
`
`
`
`i
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`

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`Case 2:21-cv-00072-JRG-RSP Document 172 Filed 10/20/21 Page 3 of 15 PageID #: 5845
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
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`Connectel, LLC v. Cisco Sys., Inc.,
`391 F. Supp. 2d 526 (E.D. Tex. 2005) .......................................................................................4
`
`Michael S Sutton Ltd. v. Nokia Corp.,
`No. 6:07-cv-203, 2009 WL 9051240 (E.D. Tex. Feb. 13, 2009) ...............................................5
`
`Motorola, Inc. v. Analog Devices, Inc.,
`No. 1:03-cv-131, 2004 WL 5633735 (E.D. Tex. Apr. 8, 2004) ................................................4
`
`O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc.,
`467 F.3d 1355 (Fed. Cir. 2006)..................................................................................................4
`
`Salazar v. HTC Corp.,
`No. 2:16-cv-01096, 2017 WL 3593789 (E.D. Tex. Aug. 20, 2017) ..........................................4
`
`Traxcell Techs., LLC v. Huawei Techs. USA Inc.,
`No. 2:17-cv-00042, 2017 WL 6559256 (E.D. Tex. Dec. 21, 2017) ......................................4, 5
`
`
`
`
`
`ii
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`

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`Case 2:21-cv-00072-JRG-RSP Document 172 Filed 10/20/21 Page 4 of 15 PageID #: 5846
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`I.
`
`Introduction
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`Plaintiff AGIS Software Development LLC (“AGIS”) accuses Uber of infringing five
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`patents. Several of those asserted patents are directed to providing a cellular phone
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`communications network, which includes multiple participants each having a cellular phone.
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`Some of the asserted claims require the network participants to store the cellular phone numbers
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`or IP addresses of the other network participants. Other claims require anonymization: One
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`network user does not have access to the telephone number and/or IP address of another network
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`user. Despite the conflict between these two sets of claims, AGIS asserts that the same accused
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`Uber products infringe both sets of claims. That cannot be. AGIS’s contradictory allegations,
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`moreover, are not alleged in the alternative; rather, AGIS affirmatively alleges these inconsistent
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`theories of infringement. And, while alternative theories might have been reasonable prior to
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`AGIS’s review of Uber’s source code, now, after days of review, AGIS has the information
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`required to pick one of the two theories.
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`AGIS’s continued assertion of these inconsistent positions forces Uber to unnecessarily
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`expend time and resources on claims AGIS knows it will not and cannot assert, which is precisely
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`what the local patent rules were created to prevent. Uber therefore respectfully requests that the
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`Court (1) order AGIS to identify which infringement theory it will pursue, and (2) strike the
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`portions of AGIS’s contentions that are inconsistent with that theory.
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`II.
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`
`Factual Background
`
`On January 28, 2021, AGIS filed its complaint alleging infringement of U.S. Patent Nos.
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`7,031,728 (the “’728 patent”), 7,630,724 (the “’724 patent”), 8,213,970 (the “’970 patent”),
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`10,299,100 (the “’100 patent”), and 10,341,838 (the “’838 patent”) (collectively, the “Asserted
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`Patents”). Dkt. No. 1, 2:21-cv-26. According to AGIS, the patents generally relate to technology
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`
`
`1
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`

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`Case 2:21-cv-00072-JRG-RSP Document 172 Filed 10/20/21 Page 5 of 15 PageID #: 5847
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`that includes a communication system that uses “integrated software and hardware components on
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`mobile devices to give users situational awareness superior to systems provided by conventional
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`military and first responder radio systems.” Id. ¶ 23.
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`Pursuant to the Docket Control Order (Dkt. No. 80), AGIS served its Disclosure of
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`Asserted Claims and Infringement Contentions on May 19, 2021. For every limitation of every
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`asserted claim, AGIS included the following language:
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`Further, to the extent this element is performed at least in part by Uber’s software
`source code, AGIS reserves the right to supplement these contentions pursuant to
`production of such source code by Uber and to the extent Defendant requires
`additional information in accordance with P.R. 3-1 and for any other reasons.
`
`
`On June 2, 2021, Uber made its source code available for review. AGIS began its review of Uber’s
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`source code on July 19, 2021. Over the past three months, AGIS’s expert has reviewed the source
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`code for multiple days.1 On August 26, 2021, AGIS served its First Amended Disclosure of
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`Asserted Claims and Infringement Contentions (“Amended Contentions”), which were
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`purportedly amended pursuant to Paragraph 3(a)(i) of the Discovery Order (Dkt. No. 79).2
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`Despite AGIS’s obligation to “identify, on an element-by-element basis for each asserted
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`claim, what source code of each Accused Instrumentality allegedly satisfie[d] the software
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`limitations,” Dkt. No. 79 at 3, the Amended Contentions include unworkable infringement
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`theories. For some claims, AGIS asserts that the accused Uber apps access and provide user
`
`
`1 Since its first review session, AGIS has requested additional source code in piecemeal fashion,
`and each time, Uber has diligently investigated and produced the requested code. None of these
`additional requests relates to the limitations that are the focus of the instant motion.
`
` Uber notified AGIS after service of its Amended Contentions that pursuant to P.R. 3-6(b), it
`would have to seek leave and show “good cause” for any further amendments. Ex. 1, 9/3/2021
`Email from R. Vincent. AGIS has since served two sets of further “amended” contentions without
`moving for leave to amend.
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`
`
` 2
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`2
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`information, but for other claims, AGIS asserts the very opposite—that the apps cannot and do not
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`have access to that same user information. Uber notified AGIS by letter of these inconsistent
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`positions and requested that AGIS identify which infringement theory it would pursue or identify
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`a time it could meet and confer. Ex. 2, 9/20/2021 Ltr. from M. Reiter to A. Fabricant.3 AGIS
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`neither responded nor identified a time for a meet and confer until after Uber sent a follow-up
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`email again requesting AGIS’s availability for a meet and confer. Ex. 3, 10/5/2021 Email from A.
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`Morgan. In its response, AGIS did not agree to amend its contentions to clarify its infringement
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`theories; rather, AGIS asserted that Uber’s request was “premature” and discovery was still
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`ongoing. Ex. 4, 10/5/2021 Email from E. Iturralde. The parties met and conferred on October 18,
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`2021 pursuant to L.R. CV 7(h). It was not until that meet and confer—four weeks after Uber
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`initially raised this issue—that AGIS offered to provide “revised” theories. AGIS offered no
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`reason why now—months after it served its original contentions, on the eve of the claim
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`construction hearing and shortly before expert reports—it should be permitted to assert new
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`theories. It should not.
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`III. Argument
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`“The Patent Rules demonstrate high expectations as to plaintiffs’ preparedness before
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`bringing suit, requiring plaintiffs to disclose their preliminary4 infringement contentions before
`
`
`3 The letter also identified another deficiency in AGIS’s Amended Contentions—AGIS’s failure
`to chart each accused product as required under P.R. 3-1(c). Uber first notified AGIS of this
`deficiency by letter on June 2, 2021. 6/2/2021 Ltr. from N. Curtis to A. Fabricant. Despite this,
`AGIS continued to identify Uber Fleet as an accused product in its Amended Contentions. It was
`not until October 5, 2021 that AGIS notified Uber that it was “not pursuing the Fleet app as a
`standalone theory.” Ex. 4, 10/5/2021 Email from E. Iturralde.
`
` In 2006, the District revised the Rules to remove the word “preliminary.” See General Order
`06-15 at 27–28 (Oct. 27, 2006).
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`
` 4
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`3
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`

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`Case 2:21-cv-00072-JRG-RSP Document 172 Filed 10/20/21 Page 7 of 15 PageID #: 5849
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`discovery has even begun.” Connectel, LLC v. Cisco Sys., Inc., 391 F. Supp. 2d 526, 527 (E.D.
`
`Tex. 2005). As such, the local patent rules require that the “parties formulate, test, and crystallize
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`their infringement theories before stating their preliminary infringement contentions . . . [so] the
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`case takes a clear path, focusing discovery on building precise final infringement or invalidity
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`contentions and narrowing issues for Markman, summary judgment, trial, and beyond.” Id.; see
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`also Salazar v. HTC Corp., No. 2:16-cv-01096, 2017 WL 3593789, at *3 (E.D. Tex. Aug. 20,
`
`2017) (“This District’s local rules allow patent holders to move through the pretrial process more
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`quickly than other venues. The tradeoff, however, is that this District requires its plaintiffs to be
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`extraordinarily prepared before filing their cases.”).5 “The rules thus seek to balance the right to
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`develop new information in discovery with the need for certainty as to legal theories.” Traxcell
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`Techs., LLC v. Huawei Techs. USA Inc., No. 2:17-cv-00042, 2017 WL 6559256, at *4 (E.D. Tex.
`
`Dec. 21, 2017) (quoting O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1366
`
`(Fed. Cir. 2006)).
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`
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`Contentions “require parties to crystalize their theories of the case, and to prevent a
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`‘shifting sands’ approach to patent litigation.” Motorola, Inc. v. Analog Devices, Inc., No. 1:03-
`
`cv-131, 2004 WL 5633735, at *1 (E.D. Tex. Apr. 8, 2004). “Specific theories create a specific
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`trajectory for the case,” and prevent the parties from proceeding through the case “without clear
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`direction.” Connectel, 391 F. Supp. 2d at 527. To this end, the patent rules require a plaintiff to,
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`at a minimum, identify (1) each accused instrumentality “separately for each asserted claim” and
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`as “specific[ally] as possible,” and (2) where each element of each asserted claim is found within
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`each accused instrumentality. See P.R. 3-1(b), (c).
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`5 All emphases added unless otherwise noted.
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`4
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`

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`Case 2:21-cv-00072-JRG-RSP Document 172 Filed 10/20/21 Page 8 of 15 PageID #: 5850
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`AGIS’s conflicting infringement theories—not alleged in the alternative6—run counter to
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`P.R. 3-1’s intended purpose that AGIS solidify its infringement theories. See Traxcell, 2017 WL
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`6559256, at *4. Indeed, they favor the shifting sands approach rather than certainty, as the recent
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`offer to amend its theories demonstrates. As explained below, AGIS points to the same accused
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`apps and asserts that they both (1) provide and store user phone numbers and IP addresses and (2)
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`do not provide and store phone numbers and IP addresses. These inconsistencies in AGIS’s
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`infringement contentions “make it impossible for [Uber] to determine the theory of infringement
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`with any certainty,” as is required under the local patent rules. See id. The inconsistencies,
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`moreover, are particularly troublesome where, as here, a plaintiff has spent multiple days
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`reviewing source code such that it knows what theory it will pursue. See Michael S Sutton Ltd. v.
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`Nokia Corp., No. 6:07-cv-203, fex, at *3 (E.D. Tex. Feb. 13, 2009) (“And at this point, Sutton has
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`had over seven months to analyze the source code since Nokia made its production in June 2008
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`and should now be able to provide a more detailed claim chart that shows specifically where each
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`element of every accused device is found.”).
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`A.
`
`AGIS’s Infringement Allegations Related to Storing User Phone Numbers
`Are Internally Inconsistent.
`
`Claim 7 of the ’728 patent and claim 9 of the ’724 patent require that the phone number of
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`
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`the other users in the network be provided to and/or stored on the user’s device. See, e.g., Cl. 7,
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`Dkt. No. 1-3, 2:21-cv-26 (’728 patent) (“providing and storing in each of the participant cellular
`
`phones one or more cellular phone telephone numbers, each cellular phone number of which
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`relates to a different symbol of each of the participants in the communication network”); Cl. 9,
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`6 Although Federal Rule of Civil Procedure 8 allows a party to include in its pleading inconsistent
`theories, the local patent rules contain no such allowance; to the contrary, their purpose is
`specificity and certainty.
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`
`
`5
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`

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`Dkt. No. 1-2, 2:21-cv-26 (’724 patent) (“accessing a database in each cell phone that includes
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`cellular telephone numbers of each of the participating users having similarly equipped cellular
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`phones, said database including the generation of one or more symbols associated with a particular
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`participating user”). Claim 1 of the ’100 patent, on the other hand, requires that the mobile device
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`does not have access to the phone number of another participant in the network. See, e.g., Cl. 1,
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`Dkt. No. 1-3, 2:21-cv-26 (’100 patent) (“wherein the mobile device does not have access to a
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`phone number associated with a computing device corresponding to the first vehicle, an Internet
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`Protocol (IP) address associated with the computing device corresponding to the first vehicle, and
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`an e-mail address associated with the computing device corresponding to the first vehicle”); see
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`also Cl. 16, Dkt. No. 1-2, 2:21-cv-26 (’724 patent).
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`In its Amended Contentions, AGIS alleges that the accused apps both store and/or provide
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`the phone numbers and do not store and/or provide the phone numbers. For example, for the
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`claims requiring storing the phone numbers, AGIS alleges that the accused apps collect, store, and
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`provide the phone numbers. AGIS’s allegations directed to claim 7 of the ’728 patent state:
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`• Riders and drivers have “the Uber app” installed on their mobile phones. Ex. 5, Amended
`Infringement Contentions at C-3.
`
`• “The Uber Accused Products practice providing and storing in each of the participant
`cellular phones one or more cellular telephone phone numbers, each cellular phone
`number of which relates to a different symbol of each of the participants in the
`communication network.” Id. at C-21.
`
`• “Uber collects the phone number of each driver and passenger when they join the Uber
`network. Uber stores and provides the phone numbers in the Uber apps . . . .” Id. at C-
`22.
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`And for claim 9 of the ’724 patent, AGIS alleges that:
`
`
`• “Each of the driver’s and the passenger’s mobile phones [are] installed with the Uber app
`and Uber driver app . . . .” Id. at B-3.
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`
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`6
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`

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`Case 2:21-cv-00072-JRG-RSP Document 172 Filed 10/20/21 Page 10 of 15 PageID #: 5852
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`• “The Uber Accused Products perform a computer implemented method . . . of: accessing a
`database in each cell phone that includes cellular telephone numbers of each of the
`participating users . . . .” Id. at B-21.
`
`• “The Uber apps meet this limitation because they access the cellular telephone numbers
`of the riders/drivers of the Uber platform/network. On information and belief, the
`telephone numbers are stored on one or more databases either locally or remotely on a[n]
`Uber server(s) for access by the Uber apps.” Id. at B-21.
`
`• “In the rider app, the device receives pickup and trip information including driver contact
`and picture data and stores the data in data structures.” Id. at B-22.
`
`• “In the driver app, the device receives pickup and trip information including rider contact
`and picture data and stores the data in data structures.” Id. at B-23.
`
`
`However, for the claims that require the device not to have access to the phone numbers, AGIS
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`asserts the very opposite. For example, for claim 1 of the ’100 patent, AGIS asserts:
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`• “Uber provides the Uber app for passengers and Uber Driver app for drivers.” Id. at D-3.
`
`• “The Uber Accused Products infringe directly and/or indirectly . . . wherein the mobile
`device does not have access to a phone number associated with a computing device
`corresponding to the first vehicle, an Internet Protocol (IP) address associated with the
`computing device corresponding to the first vehicle . . . .” Id. at D-44.
`
`• “The Uber app for the rider does not have access to the driver’s phone number associated
`with the driver’s account. The Uber app for the rider also does not have access to the
`driver’s email address or driver’s IP address associated with the driver’s device through
`the Uber app. For example, the passenger does not have any information of the driver
`(such as email address, IP address, and contact number) and this information is not
`available through the Uber app for the rider.” Id. at D-44.
`
`Similarly, for claim 16 of the ’724 patent, AGIS asserts that “[o]n information and belief,
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`communications between riders/drivers do not require knowledge of the drivers/riders’ identity or
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`phone number.” Id. at B-57.
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`
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`These allegations are irreconcilable. The Uber apps cannot both access phone numbers
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`and not access phone numbers. These types of irreconcilable allegations run afoul of the purpose
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`of the local patent rules, which require that AGIS solidify its infringement theories early in the
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`
`
`7
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`

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`Case 2:21-cv-00072-JRG-RSP Document 172 Filed 10/20/21 Page 11 of 15 PageID #: 5853
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`case. Given AGIS’s review of the source code and the stage of the case, AGIS knows which theory
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`it will pursue—Uber should not be forced to guess at which choice AGIS will make.
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`B.
`
`AGIS’s Infringement Allegations Related to Exchanging IP Addresses Are
`Similarly Inconsistent.
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`Like the claims related to users’ phone numbers, some asserted claims require the users’
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`
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`IP addresses be exchanged, while others require that the IP addresses not be accessed. For
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`example, claim 9 of the ’724 patent requires that the network participants exchange IP addresses.
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`Cl. 9, Dkt. No. 1-2, 2:21-cv-26 (’724 patent) (“exchanging IP addresses using SMS or other digital
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`message format between and among each of the network participant users so that communications
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`between participants is established via IP or transmission of a network participant’s IP address to
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`a server which then transmits data to other network participants using the IP address previously”).
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`But, in contrast, claims 1 and 24 of the ’100 patent require that the network participants do not
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`have access to each other’s IP addresses. Cls. 1 and 24, Dkt. No. 1-3, 2:21-cv-26 (’100 patent)
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`(“wherein the mobile device does not have access to . . . an Internet Protocol (IP) address associated
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`with the computing device corresponding to the first vehicle”).
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`
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`And again, for the claims that require the exchange of IP addresses, AGIS asserts that the
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`accused Uber apps provide that access. For example, for claim 9 of the ’724 patent, AGIS alleges
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`that:
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`• “Each of the driver’s and the passenger’s mobile phones [are] installed with the Uber app
`and Uber driver app . . . .” Ex. 5, Amended Infringement Contentions at B-3.
`
`• “In the rider app, the device receives pickup and trip information including driver contact
`and picture data and stores the data in data structures.” Id. at B-22.
`
`• “In the driver app, the device receives pickup and trip information including rider contact
`and picture data and stores the data in data structures.” Id. at B-23.
`
`
`
`
`8
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`

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`• “The Uber Accused Products infringe directly and/or indirectly by . . . exchanging IP
`addresses using SMS or other digital message format between and among each of the
`network participant users . . . .” Id. at B-30.
`
`• “[T]he Uber apps meet this limitation because the Uber apps transmit data (including
`their IP addresses) to the Uber server(s) which then communicates data to the other
`rider/driver. Alternatively, on information and belief, the Uber apps communicate IP
`addresses via the Uber server(s) while communicating data between riders/drivers.” Id.
`
`See also id. at B35, B37 (“Additionally, when using the Uber app, IP-based communication to the
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`Uber server(s) includes IP addresses.”).
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`Yet for the claims that require the participants not to have access to IP addresses, AGIS asserts
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`the very opposite. For example, for claim 1 of the ’100 patent, AGIS asserts:
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`• “Uber provides the Uber app for passengers and Uber Driver app for drivers.” Id. at D-3.
`
`• “The Uber Accused Products infringe directly and/or indirectly . . . wherein the mobile
`device does not have access to a phone number associated with a computing device
`corresponding to the first vehicle, an Internet Protocol (IP) address associated with the
`computing device corresponding to the first vehicle . . . .” Id. at D-44.
`
`• “The Uber app for the rider does not have access to the driver’s phone number associated
`with the driver’s account. The Uber app for the rider also does not have access to the
`driver’s email address or driver’s IP address associated with the driver’s device through
`the Uber app. For example, the passenger does not have any information of the driver
`(such as email address, IP address, and contact number) and this information is not
`available through the Uber app for the rider.” Id. at D-44.
`
`• “The rider app does not have access to a driver’s IP address or email address.” Id. at D-
`46.
`
`
`These allegations cannot be reconciled. AGIS cannot—by pointing to the same apps—assert that
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`the apps function both by knowing the IP addresses and not knowing the IP addresses. Again,
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`having spent considerable time reviewing Uber’s source code, AGIS has no excuse for its
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`contradictory and unworkable infringement theories, particularly at this late stage in the case.
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`Either the accused apps access and use this information or they do not, but they cannot do both
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`merely because AGIS wants to stretch the asserted patents to cover Uber’s products.
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`
`
`9
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`Case 2:21-cv-00072-JRG-RSP Document 172 Filed 10/20/21 Page 13 of 15 PageID #: 5855
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`IV. Conclusion
`
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`AGIS’s internally inconsistent infringement positions cannot stand. AGIS cannot assert
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`that the accused apps both require and do not require access to user-related information such as
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`phone numbers and IP addresses, particularly given the advanced stage of this case and AGIS’s
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`multiday inspection of Uber’s source code. Uber respectfully requests that the Court order AGIS
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`to choose which infringement theory it will pursue and strike the portions of AGIS’s contentions
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`that are inconsistent with that chosen theory.
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`
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`
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`10
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`

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`Case 2:21-cv-00072-JRG-RSP Document 172 Filed 10/20/21 Page 14 of 15 PageID #: 5856
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`DATE: October 20, 2021
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`
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`Respectfully submitted,
`
`GIBSON, DUNN & CRUTCHER LLP
`
`
`
`By: /s/ Mark N. Reiter
`Mark N. Reiter
`Texas State Bar No. 16759900
`mreiter@gibsondunn.com
`Robert A. Vincent
`Texas State Bar No. 24056474
`rvincent@gibsondunn.com
`Nathan R. Curtis
`Texas State Bar No. 24078390
`ncurtis@gibsondunn.com
`Ashbey N. Morgan
`Texas State Bar No. 24106339
`anmorgan@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`2001 Ross Avenue, Suite 2100
`Dallas, TX 75201-6912
`Telephone: 214.698.3360
`Facsimile: 214.571.2907
`
`Melissa R. Smith
`Texas State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, TX 75670
`Telephone: 903.934.8450
`Facsimile: 903.934.9257
`Email: melissa@gillamsmithlaw.com
`
`Attorneys for Defendant Uber Technologies, Inc.
`d/b/a Uber
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`11
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`Case 2:21-cv-00072-JRG-RSP Document 172 Filed 10/20/21 Page 15 of 15 PageID #: 5857
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`CERTIFICATE OF CONFERENCE
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`Counsel for Uber Technologies, Inc. has discussed this motion with counsel for AGIS
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`Software Development LLC. Counsel for AGIS Software Development LLC has advised that it
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`is opposed to this motion.
`
`/s/ Melissa R. Smith
`
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on October 20, 2021, the foregoing was served upon all counsel of
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`record who have consented to electronic service.
`
`/s/ Melissa R. Smith
`
`
`12
`
`