Case 2:21-cv-00072-JRG-RSP Document 88-10 Filed 06/16/21 Page 1 of 3 PageID #: 2500
`Case 2:21-cv-00072-JRG-RSP Document 88-10 Filed 06/16/21 Page 1 of 3 PageID #: 2500
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`Case 2:21-cv-00072-JRG-RSP Document 88-10 Filed 06/16/21 Page 2 of 3 PageID #: 2501
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`June 9, 2021
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`VIA EMAIL
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`Vincent J. Rubino, III
`Fabricant LLP
`230 Park Avenue
`New York, NY 10169
`vrubino@fabricantllp.com
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`Washington, D.C.
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`AGIS Software Development, LLC v. WhatsApp, Inc.,
`Case No. 2:21-cv-00029-JRG-RSP (E.D. Tex.)
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`Re:
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`Vincent:
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`I write regarding AGIS’s opposition to WhatsApp’s motion to dismiss for improper venue.
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`First, as we have repeatedly stated, WhatsApp has no regular and established place of
`business in the Eastern District of Texas. In your opposition, you state: “In the event that the
`Court finds that venue is not proper over WhatsApp, AGIS respectfully requests that it be permitted
`to conduct venue discovery prior to a determination of this Motion.” Dkt. 82 at 14-15. AGIS
`should have made this request prior to filing its opposition. AGIS’s failure to do so only confirms
`that there is no need for such discovery and that the request in its opposition is made in bad faith.
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`Indeed, AGIS identifies no discovery in its opposition that would change the facts material
`to the venue analysis. Specifically, there is no discovery that will change the fact that there has
`been no Facebook or WhatsApp equipment, servers, or other property in the INAP Data Center or
`elsewhere in the Eastern District of Texas for over three years. Further, no amount of discovery
`will change the fact that Facebook merely used the INAP Data Center as a co-location facility.
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`Regardless, WhatsApp is willing to provide AGIS with reasonable informal discovery
`related to venue. Please serve any venue-related discovery requests you believe are necessary by
`June 14.
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`AGIS’s delay in seeking this venue-related discovery to support its opposition prejudices
`WhatsApp’s ability to litigate this case fully in a proper venue.
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`Second, AGIS’s opposition makes clear that AGIS cannot allege any pre-suit acts of
`infringement. In particular, AGIS’s allegations are limited to indirect infringement against
`WhatsApp, and there can be no pre-suit acts of indirect infringement because WhatsApp did not
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`Case 2:21-cv-00072-JRG-RSP Document 88-10 Filed 06/16/21 Page 3 of 3 PageID #: 2502
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`June 9, 2021
`Page 2
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`have any pre-suit knowledge of the Asserted Patents. DSU Med. Corp. v. JMS Co., 471 F.3d 1293,
`1304 (Fed. Cir. 2006) (induced infringement requires knowledge of the asserted patent); Fujitsu
`Ltd. v. Netgear Inc., 620 F.3d 1321, 1326 (Fed. Cir. 2010) (contributory infringement requires
`knowledge of the asserted patent).
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`There can be no direct infringement where one makes, sells, or offers for sale less than the
`complete invention. Synchronoss Techs., Inc. v. Dropbox, Inc., 987 F.3d 1358, 1368 (Fed. Cir.
`2021) (“Because Dropbox does not provide its customers with any hardware in conjunction with
`its accused software, Dropbox does not make, sell, or offer for sale the complete invention.”). Nor
`can there be a “use” for direct infringement without the “use of each and every element of the
`system.” Id. at 1369 (emphasis added); see also Centillion Data Sys., LLC v. Qwest Commc’ns
`Int’l, Inc., 631 F.3d 1279, 1286 (Fed. Cir. 2011) (“Supplying the software for the customer to use
`is not the same as using the system.”). AGIS’s opposition alleges that infringement only occurs
`when a user—not WhatsApp—uses the WhatsApp Accused Products. See, e.g., Dkt. 82 at 4
`(“When a user uses the WhatsApp Accused Products, the ‘servers log certain general
`information.’”), 10 (same). Thus, WhatsApp cannot directly infringe the asserted claims because
`it does not provide each and every element of the claimed device or system, or perform each and
`every claimed step.
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`To the extent that AGIS does allege that WhatsApp directly infringes the Asserted Patents,
`please identify which claims it alleges that WhatsApp directly infringes by June 14.
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`Best regards,
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`Lisa K. Nguyen
`of LATHAM & WATKINS LLP
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