Case 2:21-cv-00072-JRG-RSP Document 345 Filed 01/25/22 Page 1 of 14 PageID #: 22856
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`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
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`
`
`v.
`
`
`T-MOBILE USA, INC. and T-MOBILE US,
`INC.,
`
`
`Defendants.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`§
`
`§
`Case No. 2:21-cv-00072-JRG
`§
`(LEAD CASE)
`§
`
`JURY TRIAL DEMANDED
`§
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`§
`§
`§
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`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
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`UBER TECHNOLOGIES, INC., d/b/a
`UBER,
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`
`Defendant.
`
`
`Case No. 2:21-cv-00026-JRG
`(MEMBER CASE)
`
`JURY TRIAL DEMANDED
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`
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S
`SUR-REPLY IN FURTHER OPPOSITION TO DEFENDANT
`UBER TECHNOLOGIES, INC., D/B/A UBER’S
`MOTION FOR SUMMARY JUDGMENT OF INELIGIBILITY OF
`U.S. PATENT NOS. 7,031,728 AND 7,630,724 (DKT. 250)
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`

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`Case 2:21-cv-00072-JRG-RSP Document 345 Filed 01/25/22 Page 2 of 14 PageID #: 22857
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`I.
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`II.
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`III.
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`V.
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`TABLE OF CONTENTS
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`Page(s)
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`THE PREAMBLE AND SPECIFICATION OF THE ’724 AND ’728
`PATENTS BOLSTERS THE INVENTIVE CONCEPT OF THE CLAIMS OF
`THE PATENTS ...............................................................................................................1
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`THE CLAIMS OF THE ’724 AND ’728 PATENTS ARE NOT DIRECTED TO
`AN ABSTRACT CONCEPT ...........................................................................................4
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`THE CLAIMS OF THE ’724 AND ’728 PATENTS DESCRIBE AN
`INVENTIVE CONCEPT .................................................................................................8
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`CONCLUSION ............................................................................................................. 10
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`i
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`Case 2:21-cv-00072-JRG-RSP Document 345 Filed 01/25/22 Page 3 of 14 PageID #: 22858
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`
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
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`Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
`134 S. Ct. 2347 (2014) .......................................................................................................... 3
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`Bascom Global Internet Servs., Inc. v. AT&T Mobility LLC,
`827 F.3d 1341 (Fed. Cir. 2016) .......................................................................................... 5, 6
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`Contentguard Holdings, Inc. v. Amazon.com, Inc.,
`142 F. Supp. 3d 510 (E.D. Tex. 2015) ................................................................................... 9
`
`Data Engine Techs. LLC v. Google LLC,
`906 F.3d 999 (Fed. Cir. 2018)........................................................................................ 5, 7, 8
`
`Enfish, LLC v. Microsoft Corp.,
`822 F.3d 1327 ............................................................................................................... 1, 3, 4
`
`Intellectual Ventures II LLC v. BITCO Gen. Ins. Corp.,
`362 F. Supp. 3d 370 (E.D. Tex. 2019) ................................................................................... 9
`
`Maxell, Ltd. v Apple Inc.,
`No. 5:19-CV-36-RWS, 2020 WL 8269548 (E.D. Tex. Nov. 11, 2020) .............................. 7, 9
`
`NTP, Inc. v. Research In Motion, Ltd.,
`418 F.3d 1282 (Fed. Cir. 2005) .............................................................................................. 2
`
`Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC,
`874 F.3d 1329 (Fed. Cir. 2017) .............................................................................................. 8
`
`Statutes
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`35 U.S.C. § 101 ............................................................................................................. 1, 6, 9, 10
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`
`
`
`ii
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`Case 2:21-cv-00072-JRG-RSP Document 345 Filed 01/25/22 Page 4 of 14 PageID #: 22859
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`Plaintiff AGIS Software Development LLC (“AGIS” or “Plaintiff”), by and through its
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`undersigned counsel, hereby submits this sur-reply in further opposition to Defendant Uber
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`Technologies, Inc., d/b/a Uber’s (“Defendant” or “Uber”) Motion for Summary Judgment of
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`Ineligibility of U.S. Patent Nos. 7,031,728 and 7,630,724 Under 35 U.S.C. § 101 (Dkt. 250) (the
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`“Motion”).
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`Uber repeats the same assertion—that the claims “simply provide methods of collecting,
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`organizing, and displaying information,” and alleges the ’728 and ’724 Patents are directed to
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`abstract ideas. Uber’s attempts to describe the inventive concepts at such a high level of
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`abstraction divorces the inventive concept of the ’728 and ’724 Patents from the claims and
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`specification. See Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1337 (“However, describing
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`the claims at such a high level of abstraction and untethered from the language of the claims all
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`but ensures that the exceptions to § 101 swallow the rule.”); id. at 1335 (“The ‘directed-to’ inquiry,
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`therefore, cannot simply ask whether the claims involve a patent-ineligible concept, because
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`essentially every routinely patent-eligible claim involving physical products and actions involves
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`a law of nature and/or natural phenomenon—after all, they take place in the physical world.”).
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`The claims of the ’728 and ’724 Patents are not directed to merely storing and organizing
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`information and displaying information. See Dkt. 323 (“Reply”) at 1-2. Uber’s arguments
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`demonstrate that there remain genuine disputes of material fact that preclude summary judgment.
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`Accordingly, Uber’s Motion should be denied.
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`I.
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`THE PREAMBLE AND SPECIFICATION OF THE ’724 AND ’728
`PATENTS BOLSTERS THE INVENTIVE CONCEPT OF THE CLAIMS
`OF THE PATENTS
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`Uber does not acknowledge the inventive concept of the ’724 and ’728 Patents. Uber
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`submits that the preamble cannot be used to determine whether the claims of the ’728 and ’724
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`Patents are directed to ineligible subject matter. Uber attempts to backtrack from its own proposed
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`Case 2:21-cv-00072-JRG-RSP Document 345 Filed 01/25/22 Page 5 of 14 PageID #: 22860
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`constructions where it proposed that the preamble of the ’724 Patent, Claim 16 is limiting. See
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`Dkt. 213 at 12 (holding that the entire preamble of Claim 16 of the ’724 Patent is limiting); id. at
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`36 (holding that the entire preamble of Claim 7 of the ’728 Patent is limiting). Uber cannot now
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`argue that the preamble is not limiting in contradiction of the Court’s construction and the parties’
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`agreement. Nonetheless, in accordance with the Court’s construction, AGIS submits that the
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`preamble recites the essential structure of the claims. See NTP, Inc. v. Research In Motion, Ltd.,
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`418 F.3d 1282, 1305-06 (Fed. Cir. 2005) (holding a preamble is generally construed to be limiting
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`if it “recites essential structure or steps, or if it is necessary to give life, meaning, and vitality to
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`the claim,” “helps to determine the scope of the patent claim,” or “limitations in the body of the
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`claim rely upon and derive antecedent basis from the preamble”). Here, the preamble recites the
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`essential structure of the invention, and the Court has construed the entire preambles of Claim 7
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`of the ’728 Patent and Claim 16 of the ’724 Patent are limiting.
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`Uber itself argued that “preambles provide the antecedent bases for limitations in the claim
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`body,” arguing that, for example, “providing or establishing a network is fundamental to the
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`alleged invention described in the patents.” See Dkt. 156 at 4-5 (“Indeed, the title of the ’724
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`Patent is a ‘method of providing a cellular phone/PDA communication system.”); id. at 5
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`(“Because providing and establishing a communications network is fundamental to ‘this
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`invention,’ the preamble must be limiting as it gives life, meaning, and vitality to the claim.”).
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`Claim 16 of the ’724 Patent recites, in whole
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`A method of providing a cellular phone communication network for designated
`participating users, each having a similarly equipped PDA cellular phone that
`includes a CPU, a GPS navigational system and a touch screen display comprising
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`Dkt. 300-2, Claim 16. Similarly, the preamble of the ’728 Patent recites, in whole:
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`A method of establishing a cellular phone communication network for designated
`participants, each having a similarly equipped cellular phone that includes voice
`communication, free and operator selected text messages, photograph and video, a
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`2
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`CPU, a GPS navigation system and a touch screen display comprising the steps of
`. . .
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`Dkt. 300-3, Claim 7. Accordingly, the preambles of both Claim 16 of the ’724 Patent and Claim
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`7 of the ’728 Patent disclose a distributed communication network for designated participating
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`users/participants with specialized software for performing these limitations. AGIS does not
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`attempt to “imbue the preambles with features from the specification.” To the contrary, AGIS
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`views the claims in light of the specification. Uber’s arguments to the contrary are unavailing.
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`Further, Uber’s allegation that “[o]ther than finding the preambles limiting, not indefinite,
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`and construing ‘free and operator selected text messages,’ the Court did not otherwise construe the
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`preambles, omits a certain term from the preambles. The “similarly equipped PDA cellular phone”
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`found in the preamble of Claim 16 of the ’724 Patent and “similarly equipped cellular phone”
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`disclosed in the preamble of Claim 7 of the ’728 Patent are terms that Defendants, including Uber,
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`submitted as indefinite. The Court construed these terms as “PDA cellular phone equipped with
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`at least a CPU, a GPS navigational system, and a touch screen display,” and “cellular phone
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`equipped with at least a voice communication, free and operator selected text messages,
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`photograph and video, a CPU, a GPS navigation system, and a touch screen display,” respectively.
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`Dkt. 213 at 13-15. The Court stated that “[t]he phrase ‘similarly equipped’ assists in understanding
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`the significance of the particular equipment recited by this other claim language in the context of
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`the network and the users.” Id. at 15.
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`Moreover, in arguing that the specification should somehow be disregarded, Uber misstates
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`the law. The patent-eligibility analysis as set forth in Mayo and Alice assesses whether the claims
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`at issue are directed to a patent-ineligible concept. See Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
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`134 S. Ct. 2347, 2355 (2014). As part of the analysis, “the ‘directed to’ inquiry applies a stage-
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`one filter to claims, considered in light of the specification, based on whether ‘their character as
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`3
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`Case 2:21-cv-00072-JRG-RSP Document 345 Filed 01/25/22 Page 7 of 14 PageID #: 22862
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`a whole is directed to excluded patent subject matter.’” Enfish, 822 F.3d at 1335 (emphasis
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`added). AGIS does not import limitations from the specification to the claims or ignore the claims.
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`Reply at 4. Rather, AGIS cites to the specification to demonstrate the improvements upon the
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`prior art and the benefits of the invention. See Dkt. 300 (“Opp.”) at 6-7; see also Enfish, 822 F.3d
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`at 1336 (“The necessity of describing the claims in such a way is underscored by the specification’s
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`emphasis that ’the present invention comprises a flexible, self-referential table that stores data.’”);
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`id. (“Moreover, our conclusion that the claims are directed to an improvement of an existing
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`technology is bolstered by the specification’s teachings that the claimed invention achieves other
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`benefits over conventional databases, such as increased flexibility, faster search times, and smaller
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`memory requirements.”). Uber’s attempts to disregard the specific disclosures of the
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`specifications are not in accordance with the case law.
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`II.
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`THE CLAIMS OF THE ’724 AND ’728 PATENTS ARE NOT DIRECTED
`TO AN ABSTRACT CONCEPT
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`Uber’s attempts to minimize the inventive concepts of the ’728 and ’724 Patents to abstract
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`ideas falls short when considering the limitations of the ’728 and ’724 Patents, the specification,
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`and the claims as a whole. AGIS has demonstrated that the claims are not simply directed to
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`“collecting, organizing, and displaying information.” For example, the ’724 Patent discloses a
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`cellular phone communication network for designated users equipped with a “similarly equipped
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`PDA cellular phone.” The ’724 Patent also discloses (1) selecting an icon that established rapid
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`voice call initiation and communication to the users by touching their symbol on the touch screen;
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`(2) transmitting rapid transmission of “operator selected text messages, photographs, voice
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`recordings and video” to other users; (3) accessing a server for establishing communications
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`between the network users and the server; and (4) generating at the server, networks enabling
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`anonymous voice and data communications. Dkt. 300-2 at Claim 16.
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`4
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`Case 2:21-cv-00072-JRG-RSP Document 345 Filed 01/25/22 Page 8 of 14 PageID #: 22863
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`The ’728 Patent discloses (1) generating one or more symbols on the touch display screen,
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`each representing a different participant; (2) providing and storing in each of the participant
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`cellular phones one or more cellular phone telephone numbers, each of which relates to a symbol;
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`(3) providing initiating cellular phone calling software which is activated by touching a symbol on
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`the touch display to automatically initiate a cellular phone call; and (4) generating a geographical
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`location chart on the display which shows the geographical location of each symbol by latitude
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`and longitude. Dkt. 300-3 at Claim 7. In Data Engine Techs. LLC v. Google LLC, the Court held
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`that “representative claim 12 is not simply directed to displaying a graphical user interface or
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`collecting, manipulating, or organizing information to improve navigation through three-
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`dimensional spreadsheets.” 906 F.3d 999, 1010 (Fed. Cir. 2018). Rather, “the claim recites a
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`specific structure (i.e., notebook tabs) within a particular spreadsheet display that performs a
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`specific function (i.e., navigating within a three-dimensional spreadsheet).” Id. at 1010-11. The
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`Court further stated that the representative claim is not “directed generally to displaying
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`information on a screen, without ‘requir[ing] a new source or type of information, or new
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`techniques for analyzing it,” and “unlike ineligible claims that merely ‘collect[], organiz[e], and
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`display . . . information on a generic display device,’ claim 12 recites ‘a specific improvement to
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`the way computers . . . operate.’” (emphasis added) Id. at 1011 (“We conclude that, when read as
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`a whole, in light of the specification, claim 12 is directed to more than a generic or abstract idea
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`as it claims a particular manner of navigating three-dimensional spreadsheets, implementing an
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`improvement in electronic spreadsheet functionality.”). Like Data Engine, the claims of the ’724
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`and ’728 Patents are not merely directed to displaying information on a graphical user interface or
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`“collecting, manipulating, or organizing information.” “The inventive concept inquiry requires
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`more than recognizing that each claim element, by itself, was known in the art.” Bascom Global
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`5
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`Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016). Rather, the
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`claims disclose specific steps for geographically locating participants on a map display
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`corresponding to a latitude and longitude and corresponding each participant to a telephone
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`number by which a user may communicate by touching a symbol on the display. See, e.g., Dkt.
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`330-3 at Claim 7. Accordingly, Uber’s Motion should be denied.
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`Further, Uber’s assertions that the invention of the ’728 and ’724 Patents does not
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`demonstrate improvements on prior art technologies is irrelevant to the § 101 analysis. In doing
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`so, Uber breaks down each limitation of Claim 7 of the ’728 Patent to allegedly demonstrate a lack
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`of inventive concept. Reply at 6-7. However, “[t]he inventive concept inquiry requires more than
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`recognizing that each claim element, by itself, was known in the art.” Bascom, 827 F.3d at 1349.
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`The inventive concept described and claimed in the ’724 and ’728 Patents is a method of
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`employing cellular telephone communications to provide location information to a group of
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`geographically dispersed people through symbols corresponding to the location of participants and
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`enabling rapid transmission of data through data and voice communications through selection of
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`symbols on a touch display. See Dkt. 300-2, Claim 16; 300-3, Claim 7. Further, the specification
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`of the ’728 Patent includes numerous other shortcomings of the prior art which Uber ignores. For
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`example, the ’728 Patent discloses “[a] drawback of the current implementation is that . . . [t]here
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`is no way to selectively activate participants,” and the cumbersome process associated with calling
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`or sending a text message to a participant or entity using separate display. ’728 Patent at 1:46-48;
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`49-67. Further, Uber ignores the inventive concept of the inventions of the ’724 and ’728 Patent
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`by omitting that the invention provides “the ability to make rapid voice and data call initiation to
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`locations, businesses, homes, and facilities whose phone number is available in a georeferenced
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`database . . . by touching the display screen at the appropriate location on the PDA display and
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`6
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`selecting a call switch” and “the ability to layer a sufficient number of switches or buttons on the
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`PDA display to perform the above functions without overlaying the map.” Id. at 2:31-37; 2:52-54
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`(emphasis added). Uber further ignores a specific prior art reference disclosed in the specification
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`of the ’728 Patent, which the patent discloses to identify the shortcomings in the prior art and
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`identify the benefits of the invention of the ’728 Patent. See ’728 Patent, 2:67-3:20 (“There is no
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`provision for displaying the location of other similarly equipped systems. There is no provision
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`to cause other similarly equipped cellular phone PDA users to transmit their location. There is no
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`provision for entering other entities of interest by touching the display screen at their locations on
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`a map. There is no provision for making a telephone call by touching the display screen at a net
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`participant’s symbol to initiate automatically the telephone call to that user or by touching multiple
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`symbols to make conference calls. There is no provision for sending text messages, photographs
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`or videos by touching the net participant(s)’ symbol(s) on the display screen to automatically send
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`text messages, photographs or videos to that participant or participant(s). . . . There is no
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`description of the uses of layered soft switches which confine the switches to a particular vicinity
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`of the PDA’s display screen.”). Construing the claims as a whole, Uber’s arguments are
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`unpersuasive. See Data Engine Techs., 906 F.3d at 1011 (“Google avers that humans have long
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`used tabs to organize information. . . . It is not enough, however, to merely trace the invention to
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`some real-world analogy. The eligibility question is not whether anyone has ever used tabs to
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`organize information. That question is reserved for §§ 102 and 103.”). Nonetheless, “[w]hether a
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`particular technology is well-understood, routine, and conventional goes beyond what was simply
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`known in the prior art.” Maxell, Ltd. v Apple Inc., No. 5:19-CV-36-RWS, 2020 WL 8269548, at
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`*7 (E.D. Tex. Nov. 11, 2020).
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`7
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`III. THE CLAIMS OF THE ’724 AND ’728 PATENTS DESCRIBE AN
`INVENTIVE CONCEPT
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`Uber does not rebut AGIS’s arguments that it improperly focuses on individual aspects of
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`the ’724 and ’728 Patents, ignoring the inventive concept of the patents, and focusing on AGIS’s
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`identification of disclosures in the specification to support AGIS’s arguments.
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`First, Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC is inapposite. The district
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`court in Two-Way held that the claims are directed “to the abstract idea of (1) sending information,
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`(2) directing the sent information, (3) monitoring the receipt of the sent information, and
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`(4 accumulating records about receipt of the sent information.” 874 F.3d 1329, 1337 (Fed. Cir.
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`2017). The Court held that “[w]hile the specification may describe a purported innovative
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`‘scalable architecture,’ claim 1 of the ’187 patent does not.” Id. at 1339. In contrast, AGIS does
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`not submit the disclosures of the specification to remedy the lack of disclosure in the claims.
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`Nonetheless, several of the limitations identified by AGIS are found in the claims. See Opp. at 12-
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`13 (identifying the following disclosures in the specification: “displaying the location of other
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`similarly equipped systems,” “causing other similarly equipped cellular phone PDA users to
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`transmit their location,” “making a telephone call by touching the display screen at a net
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`participant’s symbol to initiate automatically the telephone call to that user,” and “sending text
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`messages, photographs or videos by touching the net participant(s)’ symbol(s) on the display
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`screen to automatically send text messages, photographs or videos to that participant or
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`participant(s)”). As disclosed by the claims and the specifications, the ’724 and ’728 Patents are
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`not merely directed to “storing and organizing information about participants to be called and
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`displaying the location of the participants on a digital map from which the user can place a call.”
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`Reply at 9. The claims see Data Engine Techs., 906 F.3d at 1009 (“As the district court had
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`explained, the claims were not merely directed to displaying information on a graphical user
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`8
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`interface, but rather ’require[d] a specific, structured graphical user interface paired with a
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`prescribed functionality directly related to the graphical user interface’s structure that is addressed
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`to and resolves a specifically identified problem in the prior state of the art.’”);
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`Second, Uber attempts to explain its omission of certain claim language by arguing this
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`language is irrelevant and these limitations are found in the prior art. However, “obviousness and
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`eligibility question[s] require separate and distinct analyses.” Contentguard Holdings, Inc. v.
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`Amazon.com, Inc., 142 F. Supp. 3d 510, 516 (E.D. Tex. 2015). Nonetheless, as AGIS has
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`submitted, the claims of the ’724 and ’728 Patents improve upon the prior art by disclosing a
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`method of employing cellular telephone communications to provide location information to a
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`group of geographically dispersed people through symbols corresponding to the location of
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`participants and enable rapid transmission of data through data and voice communications through
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`selection of symbols on a touch display. See Dkt. 300-2, Claim 16; 300-3, Claim 7.
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`“The question of whether a claim element or combination of elements is well-understood,
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`routine and conventional to a skilled artisan in the relevant field is a question of fact.” Maxell,
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`Ltd., 2020 WL 8269548, at *8. This fact must be proven by clear and convincing evidence. Id.
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`As submitted, the arguments propounded by Uber highlight the numerous genuine disputes of
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`material fact underlying the § 101 analysis which precludes summary judgment. See Intellectual
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`Ventures II LLC v. BITCO Gen. Ins. Corp., 362 F. Supp. 3d 370, 377 (E.D. Tex. 2019) (denying
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`summary judgment where questions of material fact remain); Maxell, Ltd., 2020 WL 8269548, at
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`*7 (denying motion for summary judgment where “there is a genuine dispute of material fact as to
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`whether the patents contain an inventive concept.”).
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`9
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`V.
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`CONCLUSION
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`For the foregoing reasons, AGIS respectfully requests that the Court deny Defendant’s
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`Motion for Summary Judgment of Ineligibility of U.S. Patent No. 7,031,728 and 7,630,724 Under
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`35 U.S.C. § 101 (Dkt. 250).
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`Dated: January 25, 2022
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`Respectfully submitted,
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`
`
`
`
` /s/ Vincent J. Rubino, III
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Avenue,
`Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
`
`Samuel F. Baxter
`State Bar No. 01938000
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`State Bar No. 24012906
`Email: jtruelove@mckoolsmith.com
`MCKOOL SMITH, P.C.
`104 E. Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Facsimile: (903) 923-9099
`
`ATTORNEYS FOR PLAINTIFF AGIS
`SOFTWARE DEVELOPMENT LLC
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`10
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`Case 2:21-cv-00072-JRG-RSP Document 345 Filed 01/25/22 Page 14 of 14 PageID #:
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on January 25, 2022, 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/ Vincent J. Rubino, III
` Vincent J. Rubino, III
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