Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 1 of 16 PageID #: 1887
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`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`T-MOBILE USA, INC. and T-MOBILE US,
`INC.,
`
`
`Defendants.
`
`
`
`
`Case No. 2:21-cv-00026-JRG
`(MEMBER CASE)
`
`JURY TRIAL DEMANDED
`
`
`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
`§
`§
`
`§
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`UBER TECHNOLOGIES, INC., d/b/a
`UBER,
`
`
`Defendant.
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S SUR-REPLY
`IN OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.,
`D/B/A UBER’S MOTION TO DISMISS (DKT. 24)
`
`
`
` 
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 2 of 16 PageID #: 1888
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` 
`
`
`I. 
`
`II. 
`
`III. 
`
`TABLE OF CONTENTS
`
`Page(s)
`
`VENUE IS PROPER IN THE EDTX WITH RESPECT TO THE ’838 PATENT ........... 1 
`
`THE ’728 PATENT IS DIRECTED TO PATENT ELIGIBLE SUBJECT
`MATTER ............................................................................................................................ 3 
`
`AGIS HAS SUFFICIENTLY PLED DIRECT, INDIRECT, AND WILLFUL
`INFRINGEMENT............................................................................................................... 7 
`
`A. 
`
`B. 
`
`C. 
`
`Joint Infringement ................................................................................................... 7 
`
`AGIS’s Claims for Direct Infringement Are Sufficient .......................................... 8 
`
`AGIS’s Claims for Indirect Infringement Are Sufficient ....................................... 9 
`
`D.  Willful Infringement ............................................................................................. 10 
`
`IV. 
`
`CONCLUSION ................................................................................................................. 10 
`
`
`
`i
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`

`

`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 3 of 16 PageID #: 1889
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` 
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`Amgen Inc. v. Mylan Inc.,
`No. 2:17-cv-01235, 2018 WL 6061213 (W.D. Pa. Nov. 20, 2018) ...........................................4
`
`Andra Grp., LP v. Victoria’s Secret Stores, LLC,
`No. 4:19-cv-288-ALM-KPJ, 2020 WL 2478546 (E.D. Tex. Feb. 24, 2020) ............................1
`
`Blitzsafe Texas, LLC v. Mitsubishi Elec. Corp.,
`No. 2:17-cv-00430-JRG, 2019 WL 2210686, at *3 (E.D. Tex. May 22, 2019) ........................2
`
`Certified Measurement, LLC v. CenterPoint Energy Houston Elec. LLC,
`No. 2:14-cv-627-RSP, 2015 WL 1432324 (E.D. Tex. Mar. 30, 2015) ......................................7
`
`Enfish, LLC v. Microsoft Corp.,
`822 F.3d 1327 (Fed. Cir. 2016)..............................................................................................5, 6
`
`Lexington Luminance LLC v. Lowe’s Home Centers, LLC,
`No. 4:18-cv-301-ALM-KPJ, 2019 WL 1417440 (E.D. Tex. Mar. 13, 2019) ............................9
`
`Mallinckrodt IP v. B. Braun Medical Inc.,
`No. 17-365-LPS, 2017, WL 6383610 ........................................................................................2
`
`Maurice Mitchell Innovations, L.P. v. Intel Corp.,
`No. 2:04-cv-450, 2006 WL 1751779 (E.D. Tex. June 21, 2006) ..............................................4
`
`Oyster Optics, LLC v. Infinera Corp.,
`No. 2:19-cv-00257-JRG, 2020 WL 4260957 (E.D. Tex. July 23, 2020) ...................................4
`
`Phil-Insul Corp. v. Airlite Plastics Corp.,
`854 F.3d 1344 (Fed. Cir. 2017)..............................................................................................3, 4
`
`Raytheon Co. v. Cray, Inc.,
`No. 2:16-cv-00423-JRG-RSP, 2017 WL 1362700 (E.D. Tex. Mar. 13, 2017) .....................8, 9
`
`Seven Networks LLC v. Google LLC,
`315 F. Supp. 3d 933 (E.D. Tex. July 19, 2018) .........................................................................1
`
`Solutran, Inc. v. Elavon, Inc.,
`931 F.3d 1161 (Fed. Cir. 2019)..................................................................................................5
`
`Soverain Software LLC v. Victoria’s Secret Direct Brand Mgmt., LLC,
`778 F.3d 1311 (Fed. Cir. 2015)..............................................................................................3, 9
`
`ii
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`

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`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 4 of 16 PageID #: 1890
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`
`Synopsys, Inc. v. Mentor Graphics Corp.,
`839 F.3d 1138 (Fed. Cir. 2016)..................................................................................................6
`
`TQP Development, LLC v. Intuit Inc.,
`No. 2:12-cv-180-WCB, 2014 WL 2810016 (E.D. Tex. June 20, 2014) ....................................4
`
`Ultravision Techs., LLC v. GoVision, LLC,
`No. 2:18-cv-00100-JRG-RSP, 2020 WL 887754 (E.D. Tex. Feb. 24, 2020) ............................2
`
`Uniloc 2017 LLC v. Riot Games, Inc.,
`No. 2:19-cv-00223-JRG, 2020 WL 1158611 (E.D. Tex. Mar. 10, 2020) ..................................2
`
`Uniloc USA, Inc. v. Avaya Inc.,
`No. 6:15-cv-01168-JRG, 2016 WL 7042236 (E.D. Tex. May 13, 2016) ..................................9
`
` 
`
`iii
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`

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`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 5 of 16 PageID #: 1891
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`Plaintiff AGIS Software Development LLC (“AGIS” or “Plaintiff”), by and through its
`
`undersigned counsel, hereby submits this sur-reply in opposition to Defendant Uber Technologies,
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`Inc., d/b/a Uber’s (“Defendant” or “Uber”) Motion to Dismiss (Dkt. 24) (the “Motion”).
`
`Defendant mischaracterizes AGIS’s arguments and misstates the law in summarily
`
`dismissing the arguments made in AGIS’s opposition to the Motion. However, AGIS has
`
`sufficiently plead and established that (1) venue is proper with respect to the ’838 Patent; (2) the
`
`’728 Patent is directed to patent eligible subject matter; and (3) AGIS’s claims for direct, indirect,
`
`and willful infringement are sufficient.
`
`I.
`
`VENUE IS PROPER IN THE EDTX WITH RESPECT TO THE ’838
`PATENT
`
`AGIS has adequately pled acts of infringement in this District as they relate to the claims
`
`of the ’838 Patent. See Dkt. 43 (“Resp.”) at 15. As stated in AGIS’s opposition, AGIS has
`
`sufficiently plead direct and indirect infringement with respect to the ’838 Patent, and AGIS is not
`
`required to set forth in detail its infringement theories at this stage. See Id. at 17 (“However, ‘[t]he
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`issue of infringement is not reached on the merits in considering venue requirements.’”) (citing
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`Seven Networks LLC v. Google LLC, 315 F. Supp. 3d 933, 942-43 (E.D. Tex. July 19, 2018)).
`
`Moreover, the Court “must accept as true all allegations in the complaint and resolve all conflicts
`
`in favor of the plaintiff.” Andra Grp., LP v. Victoria’s Secret Stores, LLC, No. 4:19-cv-288-ALM-
`
`KPJ, 2020 WL 2478546, at *2 (E.D. Tex. Feb. 24, 2020).
`
`As the Court stated in Seven Networks, it is not required that acts of infringement required
`
`to support venue in a patent infringement action be acts of direct infringement. Resp. at 15.
`
`Defendant cannot dispute that AGIS has pled both direct and indirect infringement of the ’838
`
`Patent. See id. at 15. AGIS has alleged that Defendant and its customers have performed at least
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`one step of the ’838 Patent claims in this District and some portion of Defendant’s infringing
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`
`
`

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`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 6 of 16 PageID #: 1892
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`products, systems, and/or servers is located in this District. Id. at 16.1 Accordingly, venue is
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`proper in this District with respect to the ’838 Patent.
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`Alternatively, AGIS respectfully requests that the Court permit it to conduct venue
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`discovery prior to a determination on the Motion “to allow the adversarial process to aid the Court
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`in making a fact-specific decision on a well-developed factual record.” Mallinckrodt IP v.
`
`B. Braun Med. Inc., No. 17-365-LPS, 2017, WL 6383610, at *3 (D. Del. 2017); Blitzsafe Tex.,
`
`LLC v. Mitsubishi Elec. Corp., No. 2:17-cv-00430-JRG, 2019 WL 2210686, at *3 (E.D. Tex. May
`
`22, 2019) (“[J]urisdictional discovery should only be denied where it is impossible that the
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`discovery ‘could . . . add[] any significant facts’ that might bear on the jurisdictional
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`determination.”) (citation omitted).
`
`Venue discovery would provide additional evidence regarding Uber’s servers, networks,
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`and physical locations in this District and the nature of Uber’s relationships and agreements with
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`any partners regarding Uber’s servers, networks, and physical locations. Such agreements would
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`shed light on Uber’s relationships with respect to offering its products and services in this District.
`
`See Uniloc 2017 LLC v. Riot Games, Inc., No. 2:19-cv-00223-JRG, 2020 WL 1158611, at *3 (E.D.
`
`Tex. Mar. 10, 2020); Ultravision Techs., LLC v. GoVision, LLC, No. 2:18-cv-00100-JRG-RSP,
`
`2020 WL 887754, at *2 (E.D. Tex. Feb. 24, 2020).
`
` 
`1 Defendant argues that the ’838 Patent does not require “provid[ing] or stor[ing] the phone number
`of users and drivers,” and thus AGIS’s indirect infringement allegations are defective. By citing
`only to portions of AGIS’s arguments, Defendant ignores that AGIS has asserted that the Uber
`applications require communication with a server. See Resp. at n.2. Defendant’s disputes lie not
`with venue as they relate to AGIS’s infringement allegations, but rather with AGIS’s infringement
`theories which are not proper on a motion to dismiss for improper venue. See id. at 17.
`
`2
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 7 of 16 PageID #: 1893
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` 
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`II.
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`THE ’728 PATENT IS DIRECTED TO PATENT ELIGIBLE SUBJECT
`MATTER
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`As a preliminary matter, Defendant incorrectly argues that AGIS is collaterally estopped
`
`from arguing for claim construction of the terms of the ’728 Patent. However, Defendant (1)
`
`misstates the holding of the case it cites to in support; and (2) mischaracterizes the requirements
`
`to find collateral estoppel applies here. The Federal Circuit did not hold that “collateral estoppel
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`to issues of claim construction for parties in privity,” as submitted by Defendants. Dkt. 51
`
`(“Reply”) at 9. To the contrary, the Federal Circuit did not make any determinations with regard
`
`to parties in privity. Rather, the same party was party to the prior litigation. Phil-Insul Corp. v.
`
`Airlite Plastics Corp., 854 F.3d 1344, 1357-58 (Fed. Cir. 2017) (“The court correctly concluded
`
`that IntegraSpec was a party in Reward Wall, the ‘adjacent’ and ‘substantially the same dimension’
`
`claim terms were construed in Reward Wall, construction of those terms was ‘actually litigated’ in
`
`that case, the claim constructions became final when we affirmed them on appeal, and the claim
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`constructions were essential to the noninfringement judgments.”).
`
`In the Fifth Circuit, collateral estoppel requires, among other things, that (1) the issues
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`under consideration in both the subsequent and prior actions are identical; (2) the issues must have
`
`been fully and vigorously litigated in the prior action; (3) the issues were necessary to support the
`
`judgment in the prior case; and (4) there are no special circumstances that would render preclusion
`
`inappropriate or unfair. See Soverain Software LLC v. Victoria’s Secret Direct Brand Mgmt., LLC,
`
`778 F.3d 1311, 1315 (Fed. Cir. 2015). The Court did not construe the terms of claims 7-9 of the
`
`’728 Patent because the parties did not submit those terms for construction, the parties did not fully
`
`and vigorously litigate this issue, and there was no final judgment on claim construction. See Phil-
`
`Insul Corp., 854 F.3d at 1357-58 (“[C]laim constructions became final when we affirmed them on
`
`appeal.”). Accordingly, there was no claim construction to support a judgment nor was the claim
`
`3
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`

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`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 8 of 16 PageID #: 1894
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`construction essential for the judgment against AGIS, Inc. in the prior litigation. Id. at 1358
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`(“Because the record reveals that IntegraSpec had a full and fair opportunity to litigate the meaning
`
`of the terms ‘adjacent’ and ‘dimension’—the same terms at issue here—it is bound by those
`
`constructions.”); see Oyster Optics, LLC v. Infinera Corp., No. 2:19-cv-00257-JRG, 2020 WL
`
`4260957, at *8 (E.D. Tex. July 23, 2020). Accordingly, Defendant cannot establish that collateral
`
`estoppel applies here. See, e.g., Maurice Mitchell Innovations, L.P. v. Intel Corp., No. 2:04-cv-
`
`450, 2006 WL 1751779, at *4 (E.D. Tex. June 21, 2006) (“This Court will take into account Judge
`
`Illstron’s claim construction as a thoughtful and thorough analysis of the parties’ arguments
`
`involving the same patent and the same claim—but, in the end, will render its own independent
`
`claim construction.”); see also TQP Dev., LLC v. Intuit Inc., No. 2:12-cv-180-WCB, 2014 WL
`
`2810016, at *6 (E.D. Tex. June 20, 2014) (“[A]s the Court explained at the hearing on the summary
`
`judgment motion in this case, the previous claim construction orders provide an important starting
`
`point, but the prior orders in related cases do not bar the Court from conducting additional
`
`construction in order to refine earlier claim constructions.”); Amgen Inc. v. Mylan Inc., No. 2:17-
`
`cv-01235, 2018 WL 6061213, at *7 (W.D. Pa. Nov. 20, 2018) (“The Court also holds that Amgen
`
`has not waived any arguments based upon its decision to not propose constructions for certain
`
`terms in the Sandoz action, or its decision to not appeal certain claim constructions from the Sandoz
`
`case.”). Nonetheless, AGIS has submitted a number of terms require construction in parties joint
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`letter under the Court’s Standing Order , including but not limited to, “symbols,” “free and operator
`
`selected text messages,” and “geographical location chart.” See Dkt. 56-1.
`
`Defendant also submits that there are no disputes regarding what was understood in the art
`
`and there are no plausible factual allegations that “could override the unambiguous admissions in
`
`the patent.” However, without the opportunity or benefit of claim construction, Defendant does
`
`4
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`

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`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 9 of 16 PageID #: 1895
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`not know how AGIS has construed the claims or disclosures of the ’728 Patent nor whether there
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`are any disputes.
`
`Defendant repeats the same arguments that the claims of the ’728 Patent are directed to an
`
`abstract idea, but again, the invention of the ’728 Patent is more than merely “storing information,
`
`. . . organizing that information, and displaying that information.” See Reply at 9. Defendant
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`characterizes the claims at “such a high level of abstraction and untethered from the language of
`
`the claims” in an attempt to construe that claims as directed to patent ineligible subject matter,
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`which “all but ensures that the exceptions to § 101 swallow the rule.” See Enfish, LLC v. Microsoft
`
`Corp., 822 F.3d 1327, 1337 (Fed. Cir. 2016). Moreover, the specification and claims disclose the
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`benefits of the invention of the ’728 Patent over the prior art. They are not merely “added extra
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`words” to claim “steps for speed dialing using a geographical display” as contended by Defendant.
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`Reply at 10. The ’728 Patent offers exemplary embodiments demonstrating the interaction of the
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`software with the display to provide map-based interactivity. See Resp. at 20. Moreover, the ’728
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`Patent specifically identifies implementations of solutions to technical problems in the field of
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`command-and control systems. See id. Defendant offers no basis for asserting that the claims are
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`directed to an abstract idea merely because Defendant characterizes it in this manner.2 AGIS
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`disagrees with Defendant’s allegations that the claims are not directed to new or improved
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`computer functionality—specifically, technical problems faced by communications systems. See
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`Resp. at 20; see Enfish, 822 F.3d at 1339.
`
` 
`2 Defendant’s reliance on Solutran is unpersuasive, where plaintiff in that case argued that the
`“physicality of the paper checks being processed and transported” was enough to exempt the
`claims from being directed to an abstract idea. Solutran, Inc. v. Elavon, Inc., 931 F.3d 1161, 1168
`(Fed. Cir. 2019) (“And the Supreme Court has concluded that diagnostic methods that involve
`physical administration steps are directed to a natural law.”). Unlike Solutran, there are no
`physical administration steps directed to a natural law and AGIS has shown that there is a specific
`improvement of the underlying technology.
`
`5
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`

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`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 10 of 16 PageID #: 1896
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`Defendant’s attempts to distinguish Enfish, Core Wireless, and CXT Systems are
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`unpersuasive. Reply at 10-11 To the contrary, the systems identified by the Federal Circuit and
`
`this Court in those cases are similar to the invention disclosed by the ’728 Patent where claim 7
`
`discloses, for example, “generating one or more symbols on the touch display screen, each
`
`representing a different participant that has a cellular phone that includes said voice
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`communication, free and operator selected text messages, photograph and video, a CPU, said GPS
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`system and a touch screen display.” Resp. at 20. Nonetheless, AGIS disagrees that the specific
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`improvements claimed in the ’728 Patent, and as disclosed in the specification, at minimum “create
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`a factual dispute regarding whether the invention describes well-understood, routine, and
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`conventional activities.” Id. at 23 (citations omitted).
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`Moreover, AGIS disagrees that it is necessary to reach Step 2 of the Alice Steps but,
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`nonetheless, argued that under Step 2, there is a sufficiently transformative inventive concept so
`
`as to be patent eligible. See Resp. at 25-26. For example, AGIS has shown that the claims of the
`
`’728 Patent “effect an improvement” in the technological field. See id. at 25-26. AGIS specifically
`
`identified the improvements over the prior art systems. Id. In relying on Synopsys, Inc. v. Mentor
`
`Graphics Corp, Defendant omits a key word from the Federal Circuit’s arguments—that “complex
`
`details from the specification cannot save a claim directed to an abstract idea that recites generic
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`computer parts.” 839 F.3d 1138, 1149 (Fed. Cir. 2016) (emphasis added). Defendant misstates
`
`the law—the “’directed to’ inquiry applies a stage-one filter to claims, considered in light of the
`
`specification, based on whether ‘their character as a whole is directed to excluded subject matter.’”
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`Enfish, 822 F.3d at 1335 (citations omitted).
`
`Nonetheless, “the Court cannot simply assume Defendant[’s] characterization of the claims
`
`and implicit positions on the meaning of claim terms are correct without a meaningful ability to
`
`6
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`

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`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 11 of 16 PageID #: 1897
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`examine fully what a person of ordinary skill in the art would interpret those terms to mean.”
`
`Certified Measurement, LLC v. CenterPoint Energy Houston Elec. LLC, No. 2:14-cv-627-RSP,
`
`2015 WL 1432324, at *2 (E.D. Tex. Mar. 30, 2015).
`
`III. AGIS HAS SUFFICIENTLY PLED DIRECT, INDIRECT, AND
`WILLFUL INFRINGEMENT
`A.
`
`Joint Infringement
`
`As AGIS has stated in its briefing, AGIS has pled sufficient facts at this stage—
`
`specifically, that Defendant provides its services through a platform involving multiple parts:
`
`Uber’s servers, Uber’s Driver’s app, and the Uber app for riders. See Resp. at 28. AGIS has
`
`specifically identified the direct infringer. See id..
`
`Defendant also alleges that joint infringement is required to find infringement of the ’724
`
`and ’728 Patents. As a preliminary matter, Defendant cannot dispute that it performs the method
`
`of the ’724 Patent but alleges that because AGIS purportedly “fails to allege that Uber controls the
`
`rider,” AGIS’s infringement claims must fail. However, AGIS’s Complaint identifies that
`
`“Defendant directly and/or indirectly infringes by practicing a method for providing a cellular
`
`phone communication network for designated participating users, each user having a similarly
`
`equipped cellular phone that includes a CPU, . . . each of whom have a similarly equipped cellular
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`phone; accessing a database in each cell phone that includes cellular telephone numbers of each of
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`the participating users having similarly equipped cellular phones, . . . calling a participating user
`
`by touching the symbol on the map display and touching a call switch . . . .” Dkt. 1 ¶ 50 (2:21-cv-
`
`00026). AGIS also alleges that “the Uber application runs on smart phones which include
`
`navigation systems and provides a touch screen interface with a geographic map that allows users
`
`(e.g. riders) to call other users (e.g. drivers) by touching a symbol on the map display, as depicted
`
`below.” Id., ¶ 51. In support, AGIS cites to a screenshot of the Uber application showing how
`
`7
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`

`

`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 12 of 16 PageID #: 1898
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` 
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`users may call other users. Id. The same arguments apply for each of the Asserted Patents,
`
`including the ’970 Patent. See Reply at 13. Nonetheless, “there is no good reason why more detail
`
`should be provided for the direct infringement element of a joint infringement claim than is
`
`required for an ordinary direct infringement claim.” Raytheon Co. v. Cray, Inc., No. 2:16-cv-
`
`00423-JRG-RSP, 2017 WL 1362700, at *4 (E.D. Tex. Mar. 13, 2017). AGIS has “specified that
`
`the facts alleged should be sufficient to ‘allow a reasonable inference that all steps of the claimed
`
`method are performed.’” Id.
`
`B.
`
`AGIS’s Claims for Direct Infringement Are Sufficient
`
`Defendant argues that AGIS has not sufficiently pled direct infringement of all Asserted
`
`Patents because AGIS has included in its specific allegations for the various patents, information
`
`regarding the overlapping technology covered by the patents. Again, the Asserted Patents cover
`
`overlapping features and address the same accused features. See Resp. at 30. AGIS has pointed
`
`to specific paragraphs of its Complaint which Defendant again ignores in its reply showing how
`
`the Accused Products meet the limitations of exemplary claims. Again, this Court has stated it
`
`“does not require that plaintiffs in a patent infringement lawsuit attach fully developed
`
`infringement contentions in its complaint.” Id. at 28 (citations omitted).
`
`Moreover, Defendant rebuffs AGIS’s arguments regarding infringement of the ’970 Patent
`
`by arguing that it is AGIS who has intentionally omitted language in its Complaint. To the
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`contrary, AGIS’s Complaint clearly identifies the language of the claims of the ’970 Patent and
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`Defendant’s arguments merely highlight its disputes with AGIS’s infringement theory, not its
`
`pleadings. See Reply at 15; Dkt. 1 ¶¶ 34-35. AGIS’s Complaint places Defendant on notice of
`
`what activity is being accused of infringement and sufficiently pleads direct infringement of the
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`Asserted Patents. See Resp. at 33.
`
`8
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`

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`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 13 of 16 PageID #: 1899
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`Defendant also contends that “AGIS does not allege that Uber sells smartphones with the
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`accused calling software,” it fails to allege that Uber satisfies the ’728 Patent’s requirements.
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`Reply at 13. The ’728 Patent does not require that the infringer sell smartphones and Defendant
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`cannot cite to any claim of the ’728 Patent disclosing such requirement. To the contrary, Defendant
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`itself states that, for example, claim 7 of the ’728 Patent requires “[a] method of establishing a
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`cellular phone communication network for designated participants” and “providing initiating
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`cellular phone calling software in each cellular phone,” which AGIS has sufficiently pled that
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`Defendant meets. See Dkt. 1 ¶¶ 66-69. Nonetheless, “an allegation that a specific accused product
`
`or system infringes a patent is sufficient to meet the pleading requirements of the rules, and a
`
`plaintiff need not allege what specific components, features, or capabilities infringe. See Lexington
`
`Luminance LLC v. Lowe’s Home Ctrs., LLC, No. 4:18-cv-301-ALM-KPJ, 2019 WL 1417440, at
`
`*2 (E.D. Tex. Mar. 13, 2019) (citing Raytheon Co. v. Cray, Inc., No. 2:160CV-00423-JRG-RSP,
`
`2017 WL 1362700, at *4 (E.D. Tex. Mar. 13, 2017) (“factual assertions about what specific
`
`components, features, or capabilities the accused products have, let alone how they allegedly
`
`infringe [are] not required at the pleading [stage]”); Uniloc USA, Inc. v. Avaya Inc., No. 6:15-cv-
`
`01168-JRG, 2016 WL 7042236, at *3 (E.D. Tex. May 13, 2016) (“Requiring more would
`
`improperly and unfairly elevate the plausibility standard to a probability standard.”). AGIS’s
`
`claims for direct infringement meets the required standard.
`
`C.
`
`AGIS’s Claims for Indirect Infringement Are Sufficient
`
`With regard to AGIS’s claims for induced infringement, the Complaint contains facts that
`
`plausibly show Defendant specifically intended their drivers, customers, and/or end-users to
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`infringe and Defendant knew that the actions would constitute infringement. Resp. at 33-34.
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`Contrary to Defendant’s allegations, the Complaint contains allegations that, for example,
`
`“Defendant’s customers and end-users directly infringe, either literally or under the doctrine of
`
`9
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`equivalents, through their use of the inventions” and “Defendant induces this direct infringement.”
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`See Dkt. 1 ¶ 40. AGIS’s Complaint also contains facts showing that Defendant advertises the
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`Accused Products and provides instructions on how to use them. By arguing that AGIS’s indirect
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`infringement claims are insufficient, Defendant fails to thoroughly read the entirety of AGIS’s
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`Complaint. Nonetheless, AGIS’s Complaint is sufficient to establish its claims for indirect
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`infringement.
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`D. Willful Infringement
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`Defendant mischaracterizes the statements made by AGIS in its opposition to this Motion.
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`Specifically, AGIS has not “disavowed its allegations of willful infringement.” AGIS has reserved
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`its right to plead willful infringement as discovery progresses. See Resp. at 34.
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`IV. CONCLUSION
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`For the foregoing reasons, none of the factors weigh in favor of a dismissal and AGIS
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`respectfully requests that the Court deny Defendant’s Motion to Dismiss (Dkt. 24) in its entirety.
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`Dated: May 31, 2021
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`Respectfully submitted,
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` /s/ Alfred R. Fabricant
`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 Road, Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
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`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 15 of 16 PageID #: 1901
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`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
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`ATTORNEYS FOR PLAINTIFF AGIS
`SOFTWARE DEVELOPMENT LLC
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`Case 2:21-cv-00072-JRG-RSP Document 69 Filed 05/31/21 Page 16 of 16 PageID #: 1902
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on May 31, 2021, 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/ Alfred R. Fabricant
` Alfred R. Fabricant
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