Case 2:21-cv-00072-JRG-RSP Document 46 Filed 05/11/21 Page 1 of 8 PageID #: 945
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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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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`LYFT, 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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`AGIS SOFTWARE DEVELOPMENT LLC,
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`v.
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`WHATSAPP, INC.
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`CASE NO. 2:21-cv-00072-JRG
`(Lead Case)
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`CASE NO. 2:21-cv-00024-JRG
`(Member Case)
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`CASE NO. 2:21-cv-00026-JRG
`(Member Case)
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`CASE NO. 2:21-cv-00029-JRG
`(Member Case)
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`DEFENDANT T-MOBILE USA, INC. AND
`T-MOBILE US, INC.’S MOTION TO DISMISS
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`Case 2:21-cv-00072-JRG-RSP Document 46 Filed 05/11/21 Page 2 of 8 PageID #: 946
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`I.
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`INTRODUCTION
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`Under Federal Rule of Civil Procedure 12(b)(6), Defendants T-Mobile USA, Inc. and T-
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`Mobile US, Inc. (collectively, “T-Mobile”) move to dismiss the Complaint for Patent
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`Infringement (D.I. 1) filed by Plaintiff AGIS Software Development, LLC (“AGIS”), which
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`asserts U.S. Patent Nos. 7,031,728 (“’728 patent”), 7,630,724 (“’724 patent”), 9,408,055 (“’055
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`patent”), 9,445,251 (“’251 patent”), 9,467,838 (“’838 patent”), and 9,749,829 (“’829 patent”)
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`(collectively, the “Asserted Patents”).
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`The basis for T-Mobile’s motion to dismiss, and the supporting argument and citations of
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`law, are set forth in Docket Item 24, which is the motion to dismiss filed by defendant Uber
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`Technologies, Inc., d/b/a Uber (“Uber”), in the co-pending action against that party that has been
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`consolidated with this action. In the interests of judicial economy, T-Mobile adopts and
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`incorporates by reference the motion and supporting papers Uber filed as Docket Item 24,
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`including the arguments, evidence, and authorities cited therein, as permitted by Federal Rule of
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`Civil Procedure 10(c). Uber’s arguments apply in the same or analogous ways to the complaint
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`against T-Mobile, leading to dismissal for the same reasons.
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`II.
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`STATEMENT OF THE ISSUES TO BE DECIDED
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`Ineligible Subject Matter: Whether the Complaint should be dismissed for failure to
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`state a claim because asserted claim 7 (and its dependents) of the ’728 patent are directed to
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`patent-ineligible subject matter under 35 U.S.C. § 101.
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`Inadequate Pleading: Whether the Complaint should be dismissed for failure to state a
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`claim of (1) joint infringement, (2) direct infringement, (3) indirect infringement and (4) willful
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`infringement.
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`III. ARGUMENT
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`AGIS’s Complaint alleges that the Asserted Patents relate to “communication system[s]
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`1
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`Case 2:21-cv-00072-JRG-RSP Document 46 Filed 05/11/21 Page 3 of 8 PageID #: 947
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`that [] use integrated software and hardware components on mobile devices to give users
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`situational awareness superior to systems provided by conventional military and first responder
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`radio systems.” D.I. 1, ¶ 13.
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`As set out in Uber’s motion, AGIS’s claims fail due to invalidity of the ’728 patent, and
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`failure to present plausible claims of direct, indirect, or willful infringement as to all Asserted
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`Patents (including the two that AGIS also asserts against Uber and the four it does not). D.I. 24
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`at 6-30. AGIS’s complaint asserts patent-ineligible subject matter in the ’728 patent. It fails to
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`plausibly allege any type of infringement, whether direct, indirect, or willful. It resorts to
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`copying and pasting allegations from one patent into allegations directed to other patents with
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`different claims and different limitations. As with the complaint against Uber, this approach
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`leads to irreconcilable inconsistencies and, at bottom, fails to provide T-Mobile with the notice it
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`is due. AGIS’s indifference to that notice warrants dismissal of the entire Complaint.
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`T-Mobile briefly lays out how Uber’s motion applies to the T-Mobile Complaint below.
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`Ineligible Subject Matter: The Court should dismiss AGIS’ allegations as to the ’728
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`patent for covering patent-ineligible subject matter. D.I. 24 at 6-17. The ’728 patent’s claims
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`are directed to the abstract idea of storing, organizing, and displaying information. Id. at 10-14.
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`Nor do the asserted claims include an inventive concept. Id. at 14-17. Thus, as a matter of law,
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`the ’728 patent’s claims are ineligible under 35 U.S.C. § 101, and the Court should dismiss
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`Count VI of the T-Mobile Complaint.
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`Inadequate Pleading: AGIS also fails to plead plausible claims of direct, indirect, or
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`willful infringement against T-Mobile as to all the Asserted Patents, leading to dismissal of all
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`Counts. D.I. 24 at 17-30. In particular:
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`2
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`AGIS Fails to Plausibly Plead Direct Infringement Under a Joint Infringement Theory:
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`T-Mobile adopts Uber’s arguments that AGIS fails to plausibly plead direct infringement of the
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`’728 and ’724 patents under a joint infringement theory. D.I. 24 at 18-20. As laid out there,
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`direct infringement requires that all elements of the claim be performed by or attributable to a
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`single actor. Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020, 1022 (Fed. Cir.
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`2015) (en banc). Yet AGIS fails to identify a single actor who performs all the method steps of
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`the asserted claims of those patents. D.I. 1 ¶¶ 118-38, 145-63. Indeed, AGIS does not allege
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`that T-Mobile designs or manufactures cellular phones, or directs, controls, or has entered into a
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`joint enterprise with the cellular phone manufacturers or users, as the claims require. Id.
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`Because AGIS fails to plausibly allege any direction or control by T-Mobile over the
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`performance of method steps by third parties, or that T-Mobile forms a joint enterprise with these
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`separate actors, the Court should dismiss AGIS’s allegations for the ’728 and ’724 patents.
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`AGIS Fails to Plead Facts to Plausibly Support Its Direct Infringement Allegations: T-
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`Mobile also adopts Uber’s arguments that AGIS failed to plead facts that would plausibly
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`support its direct infringement claims as to any Asserted Patent. D.I. 24 at 20-27.
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`As with the Uber complaint, AGIS does not identify facts to enable the Court to draw a
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`reasonable inference that T-Mobile allegedly infringes each patent; instead, AGIS largely copies
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`and pastes purported factual allegations repeatedly across patents. For example, AGIS makes
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`virtually no allegations regarding the ’728 patent’s claim elements, and instead cuts and pastes
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`screenshots and allegations from its ’724 patent allegations. Compare D.I. 1 ¶¶131-34 with ¶¶
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`153-59. AGIS uses nearly the same “factual” and conclusory allegations and images throughout
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`its Complaint for multiple patents. Id., ¶¶ 29-35, 51-57, 72-78, 103-109, 125-131, 152-159. It
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`also combines allegations of infringement against three separate and distinct products
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`3
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`(FamilyMode, FamilyWhere, and Fleet Management) by lumping them together as the “Accused
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`Products” throughout the Complaint, where the three products function differently, and were
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`designed and developed separately. Id. AGIS even includes pictures of what seem to be non-T-
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`Mobile products, apparently copied from a different complaint against a different party. Id., ¶
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`126. AGIS does all this even though this Court has recognized that “cut-and-paste pleading
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`practices” are among those “that Rule 12(b)(6) was meant to address,” such as the “inadvertent
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`inclusion of language presumably taken from a pleading directed to a different case.” Ruby
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`Sands LLC v. Am. Nat’l Bank of Tex., No. 15-1955, 2016 WL 3542430, at *5 (E.D. Tex. Jun. 28,
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`2016). D.I. 24 at 20-22.
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`Due to AGIS’s slapdash shortcuts past its pleading obligations, the Complaint also
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`contains irreconcilable internal consistencies between the legal allegations and factual support.
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`D.I. 24 at 22-25. As with Uber, AGIS does not plausibly explain how the T-Mobile system
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`allegedly allows for a call to be initiated by touching a symbol representing a person or place on
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`a map, as the ’724 and ’728 claims require. D.I. 1, ¶¶ 133-134, 159-160.
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`AGIS’s other direct infringement allegations are just as vacuous. D.I. 24 at 25-27. The
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`Complaint reuses the same screenshots repeatedly throughout the Complaint, without tying them
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`to the claim limitations as this Court requires. D.I. 1, ¶¶ 30, 34, 35, 52, 56, 57, 73, 77, 78, 104,
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`108, 109, 131, 153, 157, 158. See Chapterhouse, LLC v. Shopify, Inc., No. 18-300, 2018 WL
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`6981828, at *2 (E.D. Tex. Dec. 11, 2018) (“While screenshots may be useful in laying out a
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`plausible allegation of patent infringement, Plaintiff must further allege how the screenshots
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`meet the claim in order to lay out sufficient factual allegations which might permit the Court to
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`find that the Iqbal/Twombly standard is met.”). AGIS also fails to address one or more elements
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`of each asserted claim of every patent. D.I. 1, ¶¶ 27-28, 49-50, 70-71, 101-102, 123-124, 150-
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`4
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`Case 2:21-cv-00072-JRG-RSP Document 46 Filed 05/11/21 Page 6 of 8 PageID #: 950
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`151. Allegations that involve “more claims and more complicated patents” require more than
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`“bare bones allegations.” Chapterhouse, 2018 WL 6981828, at *2 (allegations insufficient even
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`where plaintiff “br[oke] the exemplary claim into individual elements,” unlike here).
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`AGIS’s Indirect Infringement Claims for All Patents Fail: Because AGIS’s allegations of
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`direct infringement fail, so do its indirect infringement allegations. D.I. 24 at 27-29. “Where a
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`plaintiff has not adequately pleaded an underlying act of direct infringement, theories of indirect
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`infringement must be dismissed.” Qwikcash, LLC v. Blackhawk Network Holdings, Inc., No. 19-
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`876, 2020 WL 6781566, at *5 (E.D. Tex. Nov. 17, 2020). The Court should also dismiss the
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`indirect infringement claims because AGIS did not plead—and cannot in good faith allege—pre-
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`suit knowledge of the Asserted Patents. D.I. 1, ¶¶ 39, 60, 91, 113, 140, 164 (alleging knowledge
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`no earlier than filing of the Complaint). “Like induced infringement, contributory infringement
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`requires knowledge of the patent in suit and knowledge of patent infringement.” Commil USA,
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`LLC v. Cisco Sys., Inc., 575 U.S. 632, 639 (2015). The Complaint does not so allege, nor does it
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`allege any facts—let alone plausible ones—to support its bare assertions of willful blindness.
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`D.I. 1, ¶¶ 40-41, 61-62, 92-93, 114-15, 141-42, 165-66.
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` The Court Should Dismiss AGIS’s Claims of Willful Infringement: Finally, as AGIS
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`admits that it “is not asserting willful infringement as to any of the Asserted Patents at this time,”
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`the Court should dismiss those allegations. D.I. 43 at 28. Even without AGIS’s concession, the
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`Court should dismiss AGIS’s willful infringement claims against T-Mobile for the same reasons
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`as it should dismiss those claims against Uber. D.I. 24 at 29-30. As discussed above, AGIS does
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`not plausibly allege infringement of each and every element of any claim of any patent, while
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`alleging notice of the Asserted Patents only via service of the complaint. D.I. 1, ¶¶ 39, 60, 91,
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`113, 140, 164. Where a complaint fails to plausibly allege infringement of any claim, it
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`Case 2:21-cv-00072-JRG-RSP Document 46 Filed 05/11/21 Page 7 of 8 PageID #: 951
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`necessarily also fails to plausibly allege willful infringement. See Core Wireless Licensing
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`S.A.R.L. v. Apple Inc., No. 14-752, 2015 WL 12850550, at *5 (E.D. Tex. July 15, 2015),
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`adopted, 2015 WL 4910427 (E.D. Tex. Aug. 14, 2015) (Gilstrap, J.) (granting motion to dismiss
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`willful infringement allegations because “at the pleading stage, a plaintiff alleging willful
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`infringement should provide enough facts that, when taken as true, show objective recklessness
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`of the infringement risk”) (emphasis added).
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`IV. CONCLUSION
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`For the above reasons and those set forth in D.I. 24, T-Mobile respectfully requests that
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`the Court dismiss AGIS’s Complaint against T-Mobile with prejudice.
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`Date: May 11, 2021
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`Respectfully submitted,
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`/s/ Melissa R. Smith
`Ryan J. McBrayer, WSBA No. 28338
`RMcBrayer@perkinscoie.com
`PERKINS COIE LLP
`1201 Third Avenue, Suite 4900
`Seattle, WA 98101
`Phone: (206) 359-8000
`Fax: (206) 359-9000
`
`Melissa R. Smith
`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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`Counsel for Defendants T-Mobile USA, Inc.
`and T-Mobile US, Inc.
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`Case 2:21-cv-00072-JRG-RSP Document 46 Filed 05/11/21 Page 8 of 8 PageID #: 952
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`CERTIFICATE OF COMPLIANCE WITH THE
`COURT’S 35 U.S.C. § 101 MOTION PRACTICE ORDER
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`_____ The parties agree that prior claim construction is not needed to inform the Court’s
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`analysis as to patentability.
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` X The parties disagree on whether prior claim construction is not needed to inform
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`the Court’s analysis as to patentability.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`CERTIFICATE OF SERVICE
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`I certify that I am causing this document to be filed via the Court’s CM/ECF system per
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`Local Rule CV-5(a)(3) on May 11, 2021, which serves all counsel of record who are deemed to
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`have consented to electronic service with a copy of this document.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`7
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