Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 1 of 17 PageID #: 1134
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`v.
`
`T-MOBILE USA, INC., AND T-MOBILE
`US, INC.
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`v.
`
`LYFT, INC.
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`v.
`
`UBER TECHNOLOGIES, INC.,
`d/b/a UBER,
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`v.
`
`WHATSAPP, INC.
`
`§
`§
`§
`§
`§
`§
`
`§
`§
`§
`§
`§
`
`§
`§
`§
`§
`§
`§
`
`§
`§
`§
`§
`§
`
`CASE NO. 2:21-cv-00072-JRG-RSP
`(Lead Case)
`
`CASE NO. 2:21-cv-00024-JRG-RSP
`(Member Case)
`
`CASE NO. 2:21-cv-00026-JRG-RSP
`(Member Case)
`
`CASE NO. 2:21-cv-00029-JRG-RSP
`(Member Case)
`
`DEFENDANT UBER TECHNOLOGIES, INC.’S REPLY IN SUPPORT OF
`ITS MOTION TO DISMISS
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 2 of 17 PageID #: 1135
`
`TABLE OF CONTENTS
`
`Page
`
`A.
`
`B.
`
`1.
`
`2.
`
`3.
`
`Alice Step One: The Claims of the Asserted Patents Are Directed
`
`Alice Step Two: The Asserted Claims Do Not Include an
`
`C.
`
`AGIS’s Direct, Indirect, and Willful Infringement Allegations Are
`
`INTRODUCTION .............................................................................................................. 1
`ARGUMENT ...................................................................................................................... 1
`Venue Is Improper for the ’838 Patent. .................................................................. 1
`The ’728 Patent Should Be Dismissed as Patent Ineligible. ................................... 3
`No Claim Construction or Fact Issues Preclude Resolution. ...................... 3
`to an Abstract Idea. ..................................................................................... 4
`Inventive Concept. ...................................................................................... 6
`Defective. ................................................................................................................ 7
`Require Joint Infringement, which AGIS Fails to Plead. ........................... 7
`AGIS Fails to Plausibly Allege Direct Infringement for All Patents.......... 9
`AGIS’s Indirect Infringement Claims Fail for All Patents. ...................... 10
`AGIS’s Claims of Willful Infringement Should Be Dismissed. ............... 10
`CONCLUSION ................................................................................................................. 10
`
`I.
`
`II.
`
`II.
`
`AGIS’s Infringement Theories for the ’970, ’728, and ’724 Patents,
`
`1.
`
`2.
`
`3.
`
`4.
`
`i
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 3 of 17 PageID #: 1136
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Actus, LLC v. Bank of Am. Corp.,
`2010 WL 547183 (E.D. Tex. Feb. 10, 2010) .............................................................................8
`
`Cevallos v. Silva,
`541 F. App’x 390 (5th Cir. 2013) ..............................................................................................3
`
`Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc.,
`880 F.3d 1356 (Fed. Cir. 2018)..............................................................................................5, 6
`
`CXT Systems, Inc. v. Academy, Ltd.,
`2019 WL 1237148 (2019) ..........................................................................................................6
`
`Enfish, LLC v. Microsoft Corp.,
`822 F.3d 1327 (Fed. Cir. 2016)..................................................................................................5
`
`Infernal Tech., LLC v. Sony Interactive Entm’t LLC,
`2020 WL 6797026 (E.D. Tex. Aug. 18, 2020) ..........................................................................9
`
`Lyda v. CBS Corp.,
`838 F.3d 1331 (Fed. Cir. 2016)..................................................................................................7
`
`Norman IP Holdings, LLC v. Chrysler Grp. LLC,
`2014 WL 12789842 (E.D. Tex. Mar. 5, 2014) ..........................................................................9
`
`Phil-Insul Corp. v. Airlite Plastics Co.,
`854 F.3d 1344 (Fed. Cir. 2017)..................................................................................................3
`
`Qwikcash, LLC v. Blackhawk Network Holdings, Inc.,
`No. 19- 876, 2020 WL 6781566 (E.D. Tex. Nov. 17, 2020) ...................................................10
`
`Seven Networks, LLC v. Google LLC,
`315 F. Supp. 3d 933 (E.D. Tex. 2018) .......................................................................................2
`
`Simio, LLC v. FlexSim Software Prods., Inc.,
`983 F.3d 1353 (Fed. Cir. 2020)..................................................................................................4
`
`Solutran, Inc. v. Evalon, Inc.,
`931 F.3d 1161 (Fed. Cir. 2019)..................................................................................................5
`
`Synopsys, Inc. v. Mentor Graphics Corp.,
`839 F.3d 1138 (Fed. Cir. 2016)..................................................................................................6
`
`ii
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 4 of 17 PageID #: 1137
`
`TABLE OF AUTHORITIES
`(continued)
`
`TQP Dev., LLC v. Ticketmaster Entm’t, Inc.,
`2010 WL 1740927 (E.D. Tex. Apr. 29, 2010) ...........................................................................8
`
`Page(s)
`
`iii
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 5 of 17 PageID #: 1138
`
`TABLE OF ABBREVIATIONS
`
`Meaning
`Abbreviation
`U.S. Patent No. 8,213,970 (Dkt. No. 1-1)
`’970 Patent
`U.S. Patent No. 7,630,724 (Dkt. No. 1-2)
`’724 Patent
`U.S. Patent No. 7,031,728 (Dkt. No. 1-3)
`’728 Patent
`U.S. Patent No. 10,299,100 (Dkt. No. 1-4)
`’100 Patent
`U.S. Patent No. 10,341,838 (Dkt. No. 1-5)
`’838 Patent
`Complaint/Compl. Complaint for Patent Infringement (Dkt. No. 1) (Jan. 29, 2021)
`Plaintiff Agis’s Opposition to Uber’s Motion to Dismiss, Dkt. 43
`Opp.
`(May 7, 2021)
`
`iv
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 6 of 17 PageID #: 1139
`
`I.
`
`INTRODUCTION
`
`AGIS’s attempts to rehabilitate its Complaint fail. AGIS cannot establish venue for
`
`the ’838 Patent; the unrebutted testimony demonstrates that any act of alleged infringement occurs
`
`wholly outside this District. AGIS’s attempt to recast the ’728 Patent to satisfy Section 101
`
`conflicts with what the patent discloses. AGIS’s allegations in its Complaint for the ’970, ’724,
`
`and ’728 Patents necessarily require joint infringement, which AGIS has not pled. And AGIS still
`
`has not provided a coherent set of allegations of direct, indirect, or willful infringement for any
`
`patent. Respectfully, AGIS’s Complaint should be dismissed.
`
`II.
`
`ARGUMENT
`
`A.
`
`Venue Is Improper for the ’838 Patent.
`
`AGIS admits that it bears the burden to establish proper venue. Opp. at 3.1 Because
`
`asserted claim 1 of the ’838 Patent recites method steps “to be performed by one or more servers,”
`
`and Uber’s accused servers are not located within this District, venue is improper.
`
`Uber’s accused servers are not located in this District. Uber’s sworn declaration states
`
`that none of the servers for its “ride-sharing, food delivery, and freight brokerage technology”—
`
`which includes all of the accused technology—are located in this District. Mot. at 5–6; see also
`
`Rapipong Decl. ¶ 2. Rather than address the facts, AGIS argues semantics; namely, that the
`
`declaration’s use of “ride-sharing,” instead of the AGIS-coined terms “Uber” and “Uber Driver”
`
`applications, is insufficient. Opp. at 8. AGIS feigns confusion over whether Uber’s “freight
`
`brokerage technology” covers the “Uber Freight” application. Id. But AGIS’s word-game
`
`response does not rebut the sworn testimony nor satisfy AGIS’s burden.
`
`1 AGIS later contradicts itself by arguing that Uber bears the burden of establishing improper
`venue (Opp. at 10), but AGIS relies on outdated case law superseded by Federal Circuit precedent.
`
`1
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 7 of 17 PageID #: 1140
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`AGIS provides no evidence of accused servers in this District. AGIS points to Uber’s
`
`alleged use of “co-located data centers located in the United States and multiple third-party cloud
`
`computing services,” without (1) tying any of those services to the accused technology, or
`
`(2) establishing that any of those services are present in this District. Id. AGIS cherry-picks
`
`irrelevant public statements regarding a “massive network” of things like “dockless e-bikes and e-
`
`scooters,” but never explains what any of that “infrastructure” has to do with the claimed servers
`
`of the ’838 Patent (it does not) or their location. Id. Uber does not raise a “claim construction”
`
`issue requiring AGIS to identify a “single server” in the District. Opp. at 10. Whether single or
`
`multiple, distributed or not, the unrebutted facts establish that none of Uber’s servers that
`
`implement the accused technology reside in this District.
`
`All claim limitations are performed outside the District. Contrary to AGIS’s assertion,
`
`and unlike the defendant in Seven Networks, LLC v. Google LLC, 315 F. Supp. 3d 933 (E.D. Tex.
`
`2018), Uber does dispute both “(1) that Uber and its customers have performed at least one step
`
`of the ’838 Patent claims in the District; and (2) that some portion of the Accused System is located
`
`in the District.”2 Opp. at 10. Both the asserted method claim and unasserted system claim require
`
`that “one or more servers” perform all of the claimed steps or operations. Accordingly, none of
`
`these limitations could be practiced in this District, as none of the accused servers is present here.
`
`AGIS’s purported indirect infringement allegations do not establish venue. As
`
`established in Uber’s Motion—and ignored in AGIS’s Opposition—AGIS does not plausibly
`
`allege indirect infringement because Uber is the only alleged direct infringer of the ’838 Patent.
`
`See Mot. at 28. To support venue through indirect infringement, AGIS’s Opposition continues the
`
`2 The Complaint does not allege infringement of the system claim, and the term “Accused System”
`is undefined in either the Complaint or AGIS’s Opposition. In any event, the system claim also
`requires “one or more servers” that perform the claimed operations.
`
`2
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 8 of 17 PageID #: 1141
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`sloppiness of its Complaint by pointing to its allegation that “the Uber, Uber Driver, and Uber Eats
`
`Applications provides and store the phone number of users and drivers in the memories of their
`
`respective phones (e.g. through communication with a server).” Opp. at 10 n.2. This highlights
`
`AGIS’s sloppy, cut-and-paste pleading: The asserted ’838 Patent claim does not require
`
`“provid[ing] or stor[ing] the phone number of users and drivers.” AGIS cannot rely on its defective
`
`indirect infringement allegations to establish venue, and dismissal of the ’838 Patent is required.
`
`B.
`
`The ’728 Patent Should Be Dismissed as Patent Ineligible.
`
`The specification and the claims demonstrate that claims 7–9 of the ’728 patent are directed
`
`to ineligible subject matter. The patent admits that the relevant functionality already existed in the
`
`prior art. Mot. at 15–16. AGIS has no substantive response to the description of the prior art in
`
`the patent as evidenced by its meager response to step 2. Instead, AGIS attempts to distract from
`
`the admissions in the patent with unsupported and irrelevant statements3 and inapposite case law.
`
`1.
`
`No Claim Construction or Fact Issues Preclude Resolution.
`
`Based on the unambiguous disclosure in the patent, there is no issue of claim construction
`
`or fact that precludes judgment on the pleadings. See Mot. at 6 (collecting cases).
`
`No claim construction is needed for the ineligible subject matter analysis because there are
`
`no possible constructions that could affect the ineligibility of the claims. Mot. at 7. Nor did
`
`AGIS’s self-proclaimed “sister entity” seek construction of any terms in claim 7, which was
`
`litigated through trial. AGIS seeks to avoid the prior litigation by arguing Section 101 was not at
`
`issue and it would not be estopped from seeking a construction here. Opp. 12–13. AGIS is wrong.
`
`Collateral estoppel applies to claim construction for all parties in privity (e.g., AGIS) with the
`
`3 AGIS’s efforts to augment, through its opposition, the allegations in the complaint to save its
`patent must be rejected. See, e.g., Cevallos v. Silva, 541 F. App’x 390, 393-94 (5th Cir. 2013).
`
`3
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 9 of 17 PageID #: 1142
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`party in the first proceeding (i.e., AGIS’s sister entity, Advanced Ground Information Systems,
`
`Inc.). See Phil-Insul Corp. v. Airlite Plastics Co., 854 F.3d 1344, 1359-60 (Fed. Cir. 2017)
`
`(holding that collateral estoppel to issues of claim construction for parties in privity).
`
`There are likewise no issues of fact that preclude dismissal on the pleadings. AGIS argues
`
`that there may be a dispute of fact regarding what was well understood in the art. Opp. 12. The
`
`patent, however, already precisely lays out what was well-understood in the art and there are no
`
`plausible factual allegations that could override the unambiguous admissions in the patent. E.g.,
`
`Simio, LLC v. FlexSim Software Prods., Inc., 983 F.3d 1353, 1365 (Fed. Cir. 2020) (holding that
`
`conclusory statements that the claims improve the functioning and operation of the computer do
`
`not prevent resolution of the eligibility question as a matter of law).
`
`2.
`
`Alice Step One: The Claims of the Asserted Patents Are Directed to an
`Abstract Idea.
`
`The claims at issue in the ’728 patent are directed to the abstract idea of storing and
`
`organizing information about participants to be called and displaying the location of the
`
`participants on a digital map from which the user can place a call. As Uber detailed in its motion,
`
`at bottom, the claims are simply directed to collecting, organizing, and manipulating data (e.g.,
`
`user location and phone numbers). This is a basic and abstract idea that the Federal Circuit has
`
`found to fail step one ad nauseum. Mot. at 11–12.
`
`AGIS accuses Uber of over-simplifying the claim, but the claim language speaks for itself.
`
`Claim 7 recites nothing more than: (a) generating symbols representing participants; (b) storing
`
`telephone numbers of participants; (c) initiating a call by touching the symbol of a participant,
`
`using the stored phone number; and (d) displaying a chart that arranges the symbols by each
`
`participants’ latitude and longitude. In short, these claims simply require storing information
`
`(phone numbers and locations), organizing that information, and displaying that information.
`
`4
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`

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`AGIS argues that the added extra words in these steps somehow changes the direction of
`
`the claims away from this abstract idea. It does not. Taken together, the claim simply lists the
`
`steps for speed dialing using a geographical display. ’728 patent, 1:51–53. This is the core of the
`
`supposed invention and exactly what the patent describes as the distinction over the prior art.
`
`Id., 1:19-60. It is therefore the focus of the claims under step 1. See Solutran, Inc. v. Evalon, Inc.,
`
`931 F.3d 1161, 1168 (Fed. Cir. 2019) (“[W]here, as here, the abstract idea tracks the claim
`
`language and accurately captures what the patent asserts to be the focus of the claimed advance
`
`over the prior art, characterizing the claim as being directed to an abstract idea is appropriate.”
`
`(citation omitted)).
`
`Faced with the description of the alleged invention taken from the patent, AGIS tries to
`
`argue that these are user interface claims, which are eligible for patenting. Opp., 17. Again, AGIS
`
`is wrong. Although some user interface claims may improve computer functionality, claim 7 is
`
`not one of them. The patent itself makes clear that the invention is not directed to new or improved
`
`computer functionality, but on utilizing preexisting computer functionality from a preexisting UI.
`
`See ’728 patent 1:40–57. Tellingly, AGIS completely ignores Simio and the other Federal Circuit
`
`cases that have found UI claims ineligible in cases like this. See Mot. at 13.
`
`AGIS relies primarily on three cases, each of which is readily distinguishable. First, in
`
`Enfish, the claims were specifically directed, not to a UI, but to a new type of database that used
`
`self-referential tables. 822 F.3d 1327, 1337 (Fed. Cir. 2016). This new type of table improved the
`
`functioning of the computer itself, resulting in increased flexibility and smaller memory
`
`requirements. See id. Unlike the claims in Enfish that improved the functioning of a computer,
`
`the claims here merely employ a preexisting user interface to make it slightly more convenient for
`
`the user to invoke preexisting computer functionality. There is no difference in, much less
`
`5
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`

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`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 11 of 17 PageID #: 1144
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`
`
`improvement to, the underlying computing functionality. See ’728 patent 1:40–57.
`
`The claims in Core Wireless are distinguishable for the same reason. 880 F.3d 1356 (Fed.
`
`Cir. 2018). There, the claims at issue improved the functioning of computers with small screens
`
`by providing a brand-new user interface that allowed direct access to un-launched applications and
`
`data within those un-launched applications. Id. at 1363. The ’728 patent does no such thing. To
`
`the contrary, claim 7 simply recites providing access to existing computer functionality through
`
`an already existing user interface. See ’728 patent 1:40–57.
`
`Like Core Wireless, CXT Systems addressed a claim that improved the functioning of the
`
`computing device by providing a new interface that combined separate message board
`
`functionalities into a single, integrated display. 2019 WL 1237148, at *3. This is unlike claim 7
`
`here. In fact, the UI of claim 7, which just shows stored numbers on a screen, is actually closer to
`
`other claims in CXT Systems—claims directed to making stored information available in a UI—
`
`that the Court found were directed to an abstract idea. See id. at *5.
`
`3.
`
`Alice Step Two: The Asserted Claims Do Not Include an Inventive
`Concept.
`
`Uber detailed precisely why none of the limitations—individually or as an ordered
`
`combination—add the required inventive concept under step 2. Mot. at 14–17. AGIS does not
`
`substantively respond to Uber’s analysis. See Opp., 19–20. Instead, AGIS makes three ancillary
`
`arguments, each of which fail.
`
`First, AGIS insists that there are issues of fact as to what constitutes well-understood,
`
`routine material, pointing to alleged features from the specification that are not found in the claim
`
`language. Opp. at 19–20. This is beside the point as a matter of law. Unclaimed concepts or
`
`features of the alleged invention cannot add inventive concept to the claims. See Synopsys, Inc. v.
`
`Mentor Graphics Corp., 839 F.3d 1138, 1149 (Fed. Cir. 2016) (“[D]etails from the specification
`
`
`
`6
`
`

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`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 12 of 17 PageID #: 1145
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`
`
`cannot save a claim directed to an abstract idea that recites generic computer parts.”). The actual
`
`language of claim 7 recites no inventive concept. And, indeed, AGIS has not identified anything
`
`in the claims that it alleges provides the needed inventive concept.
`
`Second, AGIS accuses Uber of making “conclusory allegations,” but the conventionality
`
`of every limitation in claim 7 is fully supported by the patent itself and the case law. See Br. 14-
`
`16. AGIS also argues that claims 8 and 9 enable quick initiation of conference calls by allowing
`
`selecting certain participants. This does not add an inventive concept because the patent itself
`
`admits that conference calling was already well-known. See Br. 17.
`
`Finally, AGIS argues that a jury previously found the ’728 patent to be non-obvious. This
`
`is, of course, beside the point. The ineligibility under section 101, which is a separate inquiry from
`
`obviousness under section 103, has not yet been considered.
`
`C.
`
`AGIS’s Direct, Indirect, and Willful Infringement Allegations Are Defective.
`
`1.
`
`AGIS’s Infringement Theories for the ’970, ’728, and ’724 Patents,
`Require Joint Infringement, which AGIS Fails to Plead.
`
`AGIS does not dispute that, if its allegations require joint infringement by multiple actors,
`
`those allegations must be dismissed. And for the ’970, ’724, and ’728 Patents, AGIS has failed to
`
`rebut that its allegations necessarily require multiple actors to satisfy the claims, rendering its
`
`allegations for these patents defective. Lyda v. CBS Corp., 838 F.3d 1331, 1339 (Fed. Cir. 2016).
`
`For example, asserted claim 9 of the ’724 Patent requires “calling a participating user,” and
`
`AGIS identifies only the rider as allegedly satisfying this element (but no other element). Compl.
`
`¶ 51; Opp. at 23. AGIS attempts to sidestep the rider’s necessary action by erroneously arguing
`
`(without citation to the Complaint or otherwise) that the Accused Products “include the ability to
`
`
`
`7
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`

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`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 13 of 17 PageID #: 1146
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`
`
`initiate cellular phone calls through its software.” Opp. at 24.4 But the ’724 patent does not require
`
`providing “software” to “enable” making a phone call; it requires that someone actually make a
`
`phone call. AGIS alleges that someone is the rider, but fails to allege that Uber controls the rider.
`
`Similarly, AGIS does not dispute that its allegations regarding asserted claim 10 of the ’970
`
`Patent require actions by both the rider and driver. Opp. at 23. Instead, AGIS argues that Uber’s
`
`Accused Products are “necessary to perform the steps.” Id. Again, AGIS misses the point. That
`
`Uber’s actions may be “necessary” to perform the claim does not negate the fact that the rider’s
`
`independent actions are also necessary to perform the claim.
`
`AGIS also fails to allege that Uber satisfies the ’728 Patent’s requirement of “providing
`
`initiating cellular phone calling software in each cellular phone.” The Complaint’s only
`
`allegations regarding this element are that Uber’s accused application “runs on smart phones” that
`
`“allow users (e.g., riders) to call other users (e.g. drivers).” Opp. at 23 (citing Compl. ¶¶ 51–52).
`
`But AGIS does not allege that Uber sells smartphones with the accused calling software.
`
`AGIS protests that Uber’s argument depends on claim construction and a “fully developed”
`
`infringement case. Opp. at 22–23. Neither is true. In contrast to Actus, LLC v. Bank of Am. Corp.,
`
`2010 WL 547183 (E.D. Tex. Feb. 10, 2010), where the defendant asked the Court to “adopt a
`
`construction that the claims can only be performed by multiple actors” (id. at *2), Uber’s Motion
`
`relies on AGIS’s own allegations. For example, no claim construction will change the ’724
`
`Patent’s requirement of “calling a participating user,” or that AGIS alleges that the rider performs
`
`this step (and no other). Uber’s Motion is based on what AGIS has said in its Complaint—not
`
`
`4 This allegation is factually untrue, despite AGIS’s erroneous statement that it is not disputed. Id.
`at 23–24. To the contrary, Uber’s software alone is incapable of initiating a phone call; instead
`phone calls must be initiated by third-party software provided on customer devices. See Mot. at
`19. In any event, this distinction is irrelevant to the ’724 Patent, which requires—according to
`AGIS’s own allegations—that the rider actually place a phone call.
`
`
`
`8
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`

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`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 14 of 17 PageID #: 1147
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`
`
`what it has or hasn’t yet said in its contentions or in claim construction.
`
`Also, to excuse its unpled joint infringement theory, AGIS relies on cases involving
`
`actually pled joint infringement theories. See TQP Dev., LLC v. Ticketmaster Entm’t, Inc., 2010
`
`WL 1740927, *2 (E.D. Tex. Apr. 29, 2010) (noting the plaintiff “specifically alleged . . . direction
`
`or control”); Norman IP Holdings, LLC v. Chrysler Grp. LLC, 2014 WL 12789842, at *4 (E.D.
`
`Tex. Mar. 5, 2014) (noting the plaintiff alleged joint infringement). AGIS’s Complaint does not
`
`allege joint infringement by Uber and its customers, rendering these cases wholly inapposite.
`
`Nor does Uber’s Motion rely on “preparatory or follow-on actions,” as AGIS incorrectly
`
`suggests. Opp. at 23 (citing, e.g., Infernal Tech., LLC v. Sony Interactive Entm’t LLC, 2020 WL
`
`6797026, at *2 (E.D. Tex. Aug. 18, 2020). In Infernal Tech., the defendant relied on unclaimed
`
`steps to argue that third-party actions were necessary. Id. at *3. Here, by contrast, Uber is relying
`
`on actual claim limitations that AGIS itself alleges require action by third parties.
`
`2.
`
`AGIS Fails to Plausibly Allege Direct Infringement for All Patents.
`
`AGIS attempts to excuse the cut-and-paste errors among its allegations for different patents
`
`by arguing that they cover “overlapping technology.” Opp. at 24. This excuse does not explain
`
`AGIS’s inclusion of allegations from the ’728 Patent—such as a specifically equipped cellular
`
`phone and storing phone numbers—for the ’838 Patent, whose claims have nothing to do with
`
`those elements. Nor does it explain AGIS’s use of identical allegations for the ’100 and ’838
`
`Patents, which claim different methods performed by a mobile device and server, respectively.
`
`Moreover, AGIS’s Complaint is not deficient simply because it lacks an “element-by-
`
`element analysis.” Opp. at 25. Rather, the few factual allegations AGIS does bother to provide
`
`are irreconcilable. Mot. at 23–34. In fact, in its opposition AGIS makes Uber’s point by accusing
`
`Uber of “omitting necessary words from the claim limitation.” Opp. at 25. To the contrary, it is
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`AGIS that omits necessary words from the claims. Uber did not “intentionally omit[]” the claim
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`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 15 of 17 PageID #: 1148
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`
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`language of the ’970 Patent that requires “trigger[ing] activation of a “forced message alert
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`application program” Opp. at 25 (emphasis in original). Rather, AGIS omitted this language when
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`it alleged in the Complaint that a “ride request” is a “forced message alert,” and that the ride
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`request “triggers a forced message alert that locks the device . . . .” Compl. ¶ 34–35.
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`Uber’s Motion is not “directed towards” whether or not Uber infringes. Opp. at 26. Rather,
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`Uber demonstrates that AGIS’s Complaint fails to allege a plausible infringement theory at all—a
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`subject appropriate for a Rule 12 challenge that AGIS cannot withstand. Qwikcash, LLC v.
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`Blackhawk Network Holdings, Inc., No. 19- 876, 2020 WL 6781566, *4 (E.D. Tex. Nov. 17, 2020).
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`3.
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`AGIS’s Indirect Infringement Claims Fail for All Patents.
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`AGIS does not dispute that an allegation of indirect infringement necessarily requires a
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`plausible allegation of direct infringement. See Mot. at 27–28; Opp. at 27–28. Uber does not
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`argue, as AGIS asserts, that AGIS must plead that a “named defendant” engaged in the underlying
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`direct infringement. Opp. at 28. AGIS was required to plausibly plead that someone committed
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`an act of direct infringement, either alone or in a joint enterprise, and it has not done so.
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`Moreover, AGIS completely ignores the specific and irreparable problems with its indirect
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`infringement theory for the ’838 Patent—namely, the only (inadequately) alleged direct infringer
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`is Uber, and Uber cannot induce or contribute to its own infringement. See Mot. at 28.
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`4.
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`AGIS’s Claims of Willful Infringement Should Be Dismissed.
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`AGIS has now disavowed its allegations of willful infringement. Opp. at 28. Given this
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`renunciation, Uber’s Motion is not “moot” (id.); it should be granted and the allegations dismissed.
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`II.
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`CONCLUSION
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`For the foregoing reasons, AGIS’s Complaint should be dismissed.
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`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 16 of 17 PageID #: 1149
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`Respectfully submitted,
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`Dated: May 17, 2021
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`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
`
`By:
`
`/s/ Melissa R. Smith
`Melissa R. Smith
`Texas State Bar No. 24001351
`GILLIAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: 903.934.8450
`Facsimile: 903.934.9257
`Email: melissa@gilliamsmithlaw.com
`
`Attorneys for Defendant Uber Technologies, Inc.
`d/b/a Uber
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`Case 2:21-cv-00072-JRG-RSP Document 51 Filed 05/17/21 Page 17 of 17 PageID #: 1150
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`CERTIFICATE OF SERVICE
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`I hereby certify that on May 17, 2021, the foregoing was electronically filed in compliance
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`with Local Rule CV-5(a) and served via the Court’s electronic filing system on all counsel who
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`have consented to electronic service on this 17th day of May, 2021.
`
`/s/ Mark N. Reiter
`Mark N. Reiter
`
`12
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`