Case 2:21-cv-00072-JRG-RSP Document 86 Filed 06/15/21 Page 1 of 6 PageID #: 2224
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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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`DEFENDANTS T-MOBILE USA, INC. AND T-MOBILE US, INC.’S
`REPLY IN SUPPORT OF ITS MOTION TO DISMISS (D.I. 46)
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`Case 2:21-cv-00072-JRG-RSP Document 86 Filed 06/15/21 Page 2 of 6 PageID #: 2225
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`I.
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`INTRODUCTION
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`AGIS’s opposition (D.I. 83) cannot fix the deficiencies in its Complaint against T-Mobile
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`(D.I. 1), as pointed out in T-Mobile’s motion to dismiss. D.I. 46. Indeed, AGIS’s opposition is
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`largely identical to its opposition to Uber’s analogous motion to dismiss (D.I. 43), and fails for
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`the same reasons Uber explained in its reply, which T-Mobile incorporates by reference. D.I. 51.
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`For the reasons discussed there and in T-Mobile’s opening papers (D.I. 46), as well as the limited
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`additional grounds discussed below, the Court should dismiss AGIS’s Complaint.
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`II.
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`ARGUMENT
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`A.
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`AGIS’s Opposition to T-Mobile’s Motion to Dismiss
`Is Largely the Same as Its Opposition to Uber’s Motion,
`and the Court Should Grant Both Motions for the Same Reasons.
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`In response to Uber’s motion to dismiss (D.I. 24), AGIS filed an opposition (D.I. 43), and
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`Uber replied setting out the opposition’s failures and the reasons the Court should grant Uber’s
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`motion. D.I. 51. Because AGIS’s Complaint against T-Mobile suffers from many of the same
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`defects, T-Mobile also moved to dismiss, adopting and incorporating Uber’s motion, arguments,
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`and evidence. D.I. 46 at 1. AGIS’s assertion that this adoption by reference was somehow
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`improper (D.I. 83 at 1 n.2) is unsupported. In fact, where issues are common across parties,
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`adoption by reference can appropriately preserve judicial and party resources by reducing the
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`volume of briefing before the judge. See, e.g., Borman v. Shamrock Energy Sols., LLC, 421 F.
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`Supp. 3d 382, 387 (E.D. La. 2019) (approving “adoption by reference pursuant to Rule 10(c)” of
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`memoranda in support of motions to dismiss). It would be inefficient to require an argument be
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`repeated verbatim, taking up numerous pages, when it has already been made elsewhere. No
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`court would want submission of large quantities of the same materials to read a second time.
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`Belying its assertion, adoption by reference was appropriate here, as AGIS’s opposition
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`to T-Mobile’s motion largely copies the same arguments as its opposition to Uber’s. The
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`Case 2:21-cv-00072-JRG-RSP Document 86 Filed 06/15/21 Page 3 of 6 PageID #: 2226
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`following sections are substantively identical in both oppositions, simply replacing the
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`defendants’ names, products, and asserted patents where applicable:
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`• D.I. 43 at 3-7, D.I. 83 at 3-7: Both sections outline the legal standards for a 35 U.S.C. §
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`101 claim (patentable subject matter) and a Rule 12(b)(6) motion to dismiss for failure to
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`state a claim.
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`• D.I. 43 at 11-21, D.I. 83 at 7-17: Both sections give AGIS’s § 101 arguments, which
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`Uber’s reply addresses by explaining that there are no genuinely disputed claim
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`construction or fact issues, and that the ’728 patent fails both steps of the Alice analysis.
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`D.I. 51 at 3-7.
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`• D.I. 43 at 21-26, D.I. 83 at 17-23: Both sections make similar arguments as to joint and
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`direct infringement, and Uber’s reply demonstrates why those arguments are
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`unsuccessful, including AGIS’s failure to plead joint infringement at all, copy-and-paste
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`errors applying allegations about the ’728 patent (asserted against both Uber and T-
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`Mobile) to other patents, and irreconcilable factual allegations. D.I. 51 at 7-10.
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`• D.I. 43 at 27-28, D.I. 83 at 24: Both sections give AGIS’s ineffective arguments on
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`indirect infringement, and Uber’s reply explains why they do not meet the required
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`pleadings standard. D.I. 51 at 10.
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`• D.I. 43 at 28, D.I. 83 at 25: Both sections admit that AGIS is not asserting willful
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`infringement, and Uber’s reply establishes that the Court should thus dismiss willful
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`infringement with prejudice. D.I. 51 at 10.
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`Because AGIS’s opposition to T-Mobile’s motion to dismiss is substantively identical to
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`the analogous portions of AGIS’s Uber opposition (D.I. 43), T-Mobile adopts and incorporates
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`the relevant parts of Uber’s reply. D.I. 51 at 3-10.
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`Case 2:21-cv-00072-JRG-RSP Document 86 Filed 06/15/21 Page 4 of 6 PageID #: 2227
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`B.
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`AGIS’ Limited Additional Arguments on Joint and Direct
`Infringement Are Defective, and the Court Should Reject Them.
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`Only a few scattered sentences—on joint and divided infringement—in AGIS’s T-Mobile
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`opposition are not substantively the same as in its Uber opposition. But they do not help AGIS,
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`nor provide any basis to deny T-Mobile’s motion.
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`First, AGIS argues that the patents asserted against Uber and T-Mobile are only partially
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`overlapping. D.I. 83 at 17-18 n.9. But AGIS does not even try to explain how the non-
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`overlapping patents make any difference to the analysis, nor attempt to contradict T-Mobile’s
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`evidence that the same errors infect both complaints in the same ways as to both overlapping
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`and non-overlapping patents. Id.; D.I. 46 at 3-5. The Court may disregard AGIS’s argument on
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`this score, as “a difference which makes no difference is no difference at all.” William James:
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`The Essential Writings p.xiii (Bruce W. Wilshire, ed., State University of New York Press 1971).
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`Second, AGIS tries to rebut T-Mobile’s argument that the Complaint improperly runs
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`together three separate accused products because it supposedly “specifically identified exemplary
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`T-Mobile Products as the infringing Accused Products, and describe[d], with specificity…
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`exemplary claims AGIS contends T-Mobile infringes.” D.I. 83 at 20. That is wrong. D.I. 46 at
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`3-4. AGIS in fact accuses three distinct T-Mobile products (FamilyMode, FamilyWhere, and
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`Fleet Management) but rarely addresses them separately, instead almost always lumping them
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`together. See, e.g., D.I. 1, ¶ 16 (“T-Mobile has manufactured, used, marketed, distributed, sold,
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`offered for sale, and exported from and imported into the United States… T-Mobile Family
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`Mode application and systems, T-Mobile FamilyWhere application and systems, and T-Mobile
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`Fleet Management Solutions… (collectively, the ‘Accused Products’)”); ¶ 17 (referencing the
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`functionalities of the “Accused Products” as a whole and stating that the “Accused Products
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`practice the claims of the Asserted Patents to improve user experiences and to improve T-
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`Case 2:21-cv-00072-JRG-RSP Document 86 Filed 06/15/21 Page 5 of 6 PageID #: 2228
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`Mobile’s position in the market.”); ¶ 25 (“Defendants have and continue to directly infringe at
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`least claim 8 of the ’055 Patent, either literally or under the doctrine of equivalents, by making,
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`using, selling, offering for sale, distributing, exporting from, and/or importing into the United
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`States the Accused Products…”); ¶¶ 47, 68, 99, 121, 148 (similar allegations for other patents);
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`¶¶ 29-35, 51-57, 72-78, 103-109, 125-131, 152-159 (further mixed allegations).
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`AGIS’s opposition tardily attempts to draw more alleged distinctions between the
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`Accused Products (D.I. 83 at 18-21), but it cannot fix or even address these defects in its
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`Complaint, the only document that matters on a motion to dismiss. See, e.g., Cevallos v. Silva,
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`541 F. App’x 390, 393-94 (5th Cir. 2013) (“It is also not enough that [Plaintiff’s] Response [to
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`Defendants’] motions to dismiss elaborated on his allegations against [one Defendant]. Even if
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`his Response stated a claim for relief cognizable under Twombly, the complaint must contain
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`either direct allegations on every material point necessary to sustain recovery or contain
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`allegations from which an inference may be fairly drawn that evidence will be introduced at
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`trial.”) (emphasis original). This Court should reject AGIS’s efforts to augment, through its
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`opposition, the Complaint’s allegations to try to save its claims.
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`III. CONCLUSION
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`For the above reasons and those in T-Mobile’s opening papers (D.I. 46) and Uber’s reply
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`(D.I. 51), the Court should dismiss AGIS’s Complaint with prejudice.
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`Date: June 15, 2021
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`Respectfully submitted,
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`/s/ Melissa R. Smith
`Ryan J. McBrayer, WSBA No. 28338
`RMcBrayer@perkinscoie.com
`Jassiem N Moore
`JassiemMoore@perkinscoie.com
`PERKINS COIE LLP
`1201 Third Avenue, Suite 4900
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`Case 2:21-cv-00072-JRG-RSP Document 86 Filed 06/15/21 Page 6 of 6 PageID #: 2229
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`Seattle, WA 98101
`Phone: 206.359.8000
`Fax: 206.359.9000
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`Miguel Jose Bombach
`Perkins Coie
`11452 El Camino Real, Suite 300
`San Diego, CA 92130-2080
`Phone: 858.720.5747
`Fax: 858.720.5700
`mbombach@perkinscoie.com
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`Melissa R. Smith, State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: 903.934.8450
`Fax: 903.934.9257
`melissa@gillamsmithlaw.com
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`Counsel for Defendants T-Mobile USA, Inc.
`and T-Mobile US, Inc.
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`CERTIFICATE OF SERVICE
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`I certify that this document is being filed through the Court’s electronic filing system,
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`which serves counsel for other parties who are registered participants as identified on the Notice
`of Electronic Filing (NEF). Any counsel for other parties who are not registered participants are
`being served by first class mail on the date of electronic filing.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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