Case 2:21-cv-00072-JRG-RSP Document 215 Filed 11/15/21 Page 1 of 7 PageID #: 7552
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CASE NO. 2:21-cv-00072-JRG
`(Lead Case)
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`CASE NO. 2:21-cv-00026-JRG
`(Member Case)
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`v.
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`T-MOBILE USA, INC., AND T-MOBILE
`US, INC.
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`v.
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`UBER TECHNOLOGIES, INC.,
`d/b/a UBER,
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`DEFENDANT UBER TECHNOLOGIES, INC.’S REPLY IN SUPPORT OF ITS
`MOTION TO STRIKE PLAINTIFF’S FIRST AMENDED DISCLOSURE OF
`ASSERTED CLAIMS AND INFRINGEMENT CONTENTIONS (DKT. 172)
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`Case 2:21-cv-00072-JRG-RSP Document 215 Filed 11/15/21 Page 2 of 7 PageID #: 7553
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`In its opposition, AGIS fails to reconcile its two inconsistent infringement theories. Indeed,
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`rather than reconcile the theories, AGIS conflates claim limitations from the ’100 Patent, which
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`require anonymizing participant information, such as phone numbers, with claim limitations from
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`the ’728 Patent,1 which, in contrast, require “providing and storing” each participant’s cellular
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`telephone number. And try as it might, AGIS’s new doctrine of equivalents theory does not erase
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`the inconsistency—it highlights the inconsistency by overtly importing an “identifier” limitation
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`from the ’100 Patent into the ’728 Patent. Respectfully, the Court should reject AGIS’s attempt
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`to sidestep the plain language of the claims.
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`Without citing to anything other than attorney argument, AGIS argues that the “cellular
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`phone telephone number” disclosed in the ’728 Patent is merely an “identifier[] that [is] used to
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`call or message another user” and not the actual cellular telephone number associated with each
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`participant. AGIS Br. at 4. This, according to AGIS, is different from the “phone number” found
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`in the ’100 Patent. Id. According to AGIS, while Uber anonymizes cellular phone numbers,
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` Id. And thus, based on this contrived discrepancy, AGIS argues that it (1) accused “Uber’s
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`anonymous calling system, the purpose of which is not to share the identifying telephone numbers
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`of each device,” and (2)
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` Id. at 6. Regardless of what AGIS argues in its brief, the patents and AGIS’s
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`infringement contentions tell a different story.
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`Claim Language. Despite relying on the plain meaning of the “phone number” limitation
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`1 In the Court’s Claim Construction Order, the Court found the term “using the IP address
`previously” indefinite and thus, claim 9 of the ’724 Patent is indefinite. Dkt. No. 213 at 28. This
`reply does not address AGIS’s inconsistent theories regarding the phone number and IP address
`limitations of claim 9 of the ’724 Patent because AGIS can no longer proceed on that claim.
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`1
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`Case 2:21-cv-00072-JRG-RSP Document 215 Filed 11/15/21 Page 3 of 7 PageID #: 7554
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`for the ’100 Patent, for the ’728 Patent, AGIS attempts to justify its inconsistent theories by
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`importing a special meaning (that was never raised during claim construction) for “phone number.”
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`Even worse, AGIS’s special meaning is completely divorced from the claim language because
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`the ’728 Patent requires that the “cellular phone number” relate “to a different symbol of each of
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`the participants in the communication network.” And this limitation in the ’728 Patent is critical
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`because it is that symbol, as discussed below, that is touched to “automatically initiate[] a cellular
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`phone call.” AGIS’s argument that
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` simply highlights that it cannot, at the same time, assert claims that require
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`providing and storing a cellular telephone number with claims that require the mobile device “not
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`have access to a phone number associated” with other participants.
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`Infringement Contentions. AGIS points to
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` as the
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`allegedly infringing feature that meets the limitations-at-issue for the ’728 and ’100 Patents. But
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`AGIS’s infringement contentions apply
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` inconsistently. For example, for limitation 1[B]
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`of the ’100 Patent, AGIS asserts that
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` Dkt. No. 197-4 (Ex. D to Third
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`Amended Infringement Contentions) at D-14. In other words,
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` As such, for limitation 1[K] of the ’100 Patent, AGIS asserts that
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` Id. at D-47, D-49.
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`But for limitation 7[B] of the ’728 Patent, AGIS cites that very same line of code
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`Case 2:21-cv-00072-JRG-RSP Document 215 Filed 11/15/21 Page 4 of 7 PageID #: 7555
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` Dkt. No. 197-3 (Ex. C to Third Amended Infringement Contentions) at C-26-C-
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`27.
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` These
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`inconsistencies permeate throughout AGIS’s contentions.
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`Claim Construction Order. AGIS’s inconsistent theories are highlighted by the Court’s
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`claim construction of other limitations in the ’728 Patent. The Court construed—and AGIS agreed
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`at the Markman hearing—that the subsequent “providing initiating cellular phone calling
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`software” limitation in claim 7 of the ’728 Patent was software “that is activated by touching a
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`symbol on the touch display that automatically initiates a cellular phone call using the stored
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`cellular phone number to the participant represented by the symbol.” Dkt. No. 213 at 37
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`(emphasis added). AGIS did not seek a construction of the term “cellular phone number” during
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`the claim construction process and should not now be permitted to inject a new construction—a
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`cellular phone number is simply an “identifier”—to erase its plainly inconsistent infringement
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`theories. Uber’s apps either operate by providing and storing the cell phone numbers or they do
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`not—but they cannot do both and still meet the claim limitations of the ’728 and ’100 Patents.
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`Respectfully, Uber’s motion should be granted, and the Court should (1) order AGIS to
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`identify which infringement theory it will pursue as to the ’728 and ’100 Patents, and (2) strike the
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`portions of AGIS’s contentions that are inconsistent with that theory.2
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`2 That Uber agreed to AGIS’s amended infringement contentions is completely irrelevant to this
`motion. That joint motion is express that nothing about the parties’ agreement “should be
`construed as a waiver of challenges to the substantive merit of the other party’s contentions,
`including with respect to Uber’s Motion to Strike Plaintiff’s First Amended Disclosure of Asserted
`Claims and Infringement Contentions (Dkt. 172).” Dkt. No. 195 at 2. Uber’s agreement to the
`joint motion was not a concession that the present motion was somehow moot, nor was it a
`concession that it understood AGIS’s theories.
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`3
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`Case 2:21-cv-00072-JRG-RSP Document 215 Filed 11/15/21 Page 5 of 7 PageID #: 7556
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`Respectfully submitted,
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`GIBSON, DUNN & CRUTCHER LLP
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`/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
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`Melissa R. Smith
`Texas State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: 903.934.8450
`Facsimile: 903.934.9257
`Email: melissa@gillamsmithlaw.com
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`Attorneys for Defendant Uber
`Technologies, Inc. d/b/a Uber
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`4
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`Dated: November 11, 2021
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`Case 2:21-cv-00072-JRG-RSP Document 215 Filed 11/15/21 Page 6 of 7 PageID #: 7557
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`CERTIFICATE OF SERVICE
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`I hereby certify that on November 11, 2021, the foregoing was electronically filed in
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`compliance with Local Rule CV-5(a) and served via the Court’s electronic filing system on all
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`counsel who have consented to electronic service on this 11th day of November, 2021.
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`/s/ Mark N. Reiter
`Mark N. Reiter
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`5
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`Case 2:21-cv-00072-JRG-RSP Document 215 Filed 11/15/21 Page 7 of 7 PageID #: 7558
`Case 2:21-cv-00072-JRG-RSP Document 215 Filed 11/15/21 Page 7 of 7 PagelD #: 7558
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