Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 1 of 16 PageID #: 2503
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`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
`§
`§
`
`§
`§
`§
`§
`§
`§
`
`
`
`v.
`
`
`T-MOBILE USA, INC. and T-MOBILE US,
`INC.,
`
`
`Defendants.
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S SUR-REPLY
`IN FURTHER SUPPORT OF OPPOSITION TO
`DEFENDANTS T-MOBILE USA, INC. AND
`T-MOBILE US, INC.’S MOTION TO DISMISS (DKT. 46)
`
`
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 2 of 16 PageID #: 2504
`
`TABLE OF CONTENTS
`
`Page(s)
`
`I.
`
`II.
`
`THE ’728 PATENT IS DIRECTED TO PATENT ELIGIBLE SUBJECT
`MATTER ............................................................................................................................ 1
`
`AGIS HAS SUFFICIENTLY PLED DIRECT AND INDIRECT
`INFRINGEMENT............................................................................................................... 6
`
`A.
`
`B.
`
`C.
`
`Joint Infringement ................................................................................................... 8
`
`AGIS’s Claims for Direct Infringement Are Sufficient .......................................... 8
`
`AGIS’s Claims for Indirect Infringement Are Sufficient ..................................... 10
`
`D. Willful Infringement ............................................................................................. 10
`
`III.
`
`CONCLUSION ................................................................................................................. 10
`
`
`
`i
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 3 of 16 PageID #: 2505
`
`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) ...........................................3
`
`Borman v. Shamrock Energy Sols., LLC,
`421 F. Supp. 3d 382 (E.D. La. 2019) .........................................................................................1
`
`Certified Measurement, LLC v. CenterPoint Energy Hous. Elec. LLC,
`No. 2:14-cv-627-RSP, 2015 WL 1432324 (E.D. Tex. Mar. 30, 2015) ......................................6
`
`Enfish, LLC v. Microsoft Corp.,
`822 F.3d 1327 (Fed. Cir. 2016)..............................................................................................4, 5
`
`Estech Sys., Inc. v. Target Corp.,
`No. 2:20-cv-00123-JRG-RSP, 2020 WL 6496425 (E.D. Tex. Aug. 10, 2020) .....................7, 8
`
`Lexington Luminance LLC v. Lowe’s Home Ctrs., LLC,
`No. 4:18-cv-301-ALM-KPJ, 2019 WL 1417440 (E.D. Tex. Mar. 13, 2019) ............................9
`
`Maurice Mitchell Innovations, L.P. v. Intel Corp.,
`No. 2:04-cv-450, 2006 WL 1751779 (E.D. Tex. June 21, 2006) ..............................................3
`
`Oyster Optics, LLC v. Infinera Corp.,
`No. 2:19-cv-00257-JRG, 2020 WL 4260957 (E.D. Tex. July 23, 2020)...................................3
`
`Phil-Insul Corp. v. Airlite Plastics Corp.,
`854 F.3d 1344 (Fed. Cir. 2017)..................................................................................................2
`
`Raytheon Co. v. Cray, Inc.,
`No. 2:16-cv-00423-JRG-RSP, 2017 WL 1362700 (E.D. Tex. Mar. 13, 2017) .....................8, 9
`
`Solutran, Inc. v. Elavon, Inc.,
`931 F.3d 1161 (Fed. Cir. 2019)..................................................................................................4
`
`Soverain Software LLC v. Victoria’s Secret Direct Brand Mgmt., LLC,
`778 F.3d 1311 (Fed. Cir. 2015)..............................................................................................2, 9
`
`Synopsys, Inc. v. Mentor Graphics Corp.,
`839 F.3d 1138 (Fed. Cir. 2016)..................................................................................................5
`
`TQP Dev., LLC v. Intuit, Inc.,
`No. 2:12-cv-180-WCB, 2014 WL 2810016 (E.D. Tex. June 20, 2014) ....................................3
`
`ii
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 4 of 16 PageID #: 2506
`
`Uniloc USA, Inc. v. Avaya, Inc.,
`No. 6:15-cv-1168-JRG, 2016 WL 7042236 (E.D. Tex. May 13, 2016) ..............................7, 10
`
`
`
`
`
`
`iii
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 5 of 16 PageID #: 2507
`
`
`
`Plaintiff AGIS Software Development LLC (“AGIS” or “Plaintiff”), by and through its
`
`undersigned counsel, hereby submits this sur-reply in further support of its opposition to
`
`Defendants T-Mobile USA, Inc. and T-Mobile US, Inc.’s (collectively, “Defendants” or “T-
`
`Mobile”) Motion to Dismiss (Dkt. 46) (the “Motion”).
`
`Defendants incorporate by reference the entirety of Defendant Uber Technologies, Inc.,
`
`d/b/a Uber’s (“Uber”) Motion to Dismiss (“Uber’s Motion”) and the arguments set forth by Uber,
`
`despite non-overlapping patents specific to Defendants. See Dkt. 86. Defendants’ reliance on
`
`Borman v. Shamrock Energy Sols., LLC is unpersuasive where third-party plaintiff, Shamrock
`
`Energy Solutions, LLC, filed a motion for summary judgment, and Defendants incorporated by
`
`reference their own memoranda on a motion to dismiss where parties “argued at length” whether
`
`the Marcel Exception to the Louisiana Oilfield Indemnity Act applied. 421 F. Supp. 3d 382, 386
`
`(E.D. La. 2019). The Court denied the motion as premature and the motion for summary judgment
`
`which “suffer[ed] from no such temporal deficiency,” was brought to the Court when that issue
`
`became ripe. See id. Defendants do not argue that the same issue is applicable here. Nonetheless,
`
`AGIS has responded to both Defendants’ and Uber’s Motions. In addition, despite relying on
`
`Uber’s briefing and arguments in support of its Motion, Defendants appear to take issue with AGIS
`
`responding to the same arguments with the same responses, reaching the conclusion that AGIS is
`
`expected to develop new arguments in response. Nonetheless, AGIS has already responded to the
`
`specific arguments set forth by Uber and, to the extent Defendants merely reference and
`
`incorporate by reference Uber’s Reply, AGIS incorporates by reference its sur-reply to Uber’s
`
`Motion. See generally Dkt. 69.
`
`I.
`
`THE ’728 PATENT IS DIRECTED TO PATENT ELIGIBLE SUBJECT MATTER
`
`As set forth in its sur-reply to Uber’s Motion, AGIS is not collaterally estopped from
`
`arguing for claim construction of the terms of the ’728 Patent. Dkt. 69 at 7-8. Uber’s arguments
`
`
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 6 of 16 PageID #: 2508
`
`
`
`are factually and legally unsupportable. Contrary to Uber’s arguments, the Federal Circuit did not
`
`hold “collateral estoppel to issues of claim construction for parties in privity.” Dkt. 51 at 9. The
`
`Federal Circuit did not make any determinations with regard to parties in privity. Rather, the same
`
`party, IntegraSpec, was party to both the prior and subsequent litigations. 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
`
`constructions were essential to the noninfringement judgments.”). Here, AGIS was not a party to
`
`the Florida case.
`
`In the Fifth Circuit, collateral estoppel requires, among other things, that (1) the issues
`
`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
`
`construction essential for the judgment against Advanced Ground Information Systems, Inc.,
`
`Plaintiff AGIS’s sister company, in the prior litigation. Id. at 1358 (“Because the record reveals
`
`that IntegraSpec had a full and fair opportunity to litigate the meaning of the terms ‘adjacent’ and
`
`2
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 7 of 16 PageID #: 2509
`
`
`
`‘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, Defendants 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 that require construction in the parties’ joint 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. 60-1.
`
`Defendants, through their improper incorporation by reference to Uber’s Reply, also
`
`submit 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.” Dkt.
`
`69 at 8-9. However, without the opportunity or benefit of claim construction, Defendants do not
`
`know how AGIS has construed the claims or disclosures of the ’728 Patent nor whether there are
`
`3
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 8 of 16 PageID #: 2510
`
`
`
`any disputes.
`
`Defendants repeat 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 Dkt. 51 at 9. Defendants
`
`characterize 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,
`
`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
`
`benefits of the invention of the ’728 Patent over the prior art. They are not merely “added extra
`
`words” to claim “steps for speed dialing using a geographical display,” as contended by
`
`Defendants. Dkt. 51 at 10. The ’728 Patent offers exemplary embodiments demonstrating the
`
`interaction of the software with the display to provide map-based interactivity. See Dkt. 83 at 16.
`
`Moreover, the ’728 Patent specifically identifies implementations of solutions to technical
`
`problems in the field of command-and-control systems. See id. Defendants offer no basis for
`
`asserting that the claims are directed to an abstract idea merely because Defendants characterize it
`
`in this manner.1 AGIS disagrees with Defendants’ allegations that the claims are not directed to
`
`new or
`
`improved computer
`
`functionality—specifically,
`
`technical problems
`
`faced by
`
`communication systems. See Dkt. 83 at 16; see Enfish, 822 F.3d at 1339.
`
`Defendants’ attempts to distinguish Enfish, Core Wireless, and CXT Systems are
`
`
`1 Defendants’ 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.
`
`4
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 9 of 16 PageID #: 2511
`
`
`
`unpersuasive. Dkt. 51 at 10-11. To the contrary, the systems identified by the Federal Circuit and
`
`this Court in those cases are sufficiently analogous to the invention disclosed by the ’728 Patent
`
`where claim 7 discloses the claimed invention comprising, 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 communication, free and operator selected text messages,
`
`photograph and video, a CPU, said GPS system and a touch screen display,” and “generating a
`
`geographical location chart on the display screen to show the geographical location of each of the
`
`symbols that represent the participants by latitude and longitude.” Dkt. 83 at 16-18. Nonetheless,
`
`AGIS disagrees that the specific improvements claimed in the ’728 Patent, and as disclosed in the
`
`specification, at minimum “create a factual dispute regarding whether the invention describes well-
`
`understood, routine, and conventional activities.” Id. at 19-20 (citations omitted).
`
`Moreover, AGIS disagrees that it is necessary to reach Step 2 of the Alice Steps but,
`
`nonetheless, argued that under Step 2, there is a sufficiently transformative inventive concept so
`
`as to be patent eligible. See Dkt. 83 at 21-22. For example, AGIS has shown that the claims of
`
`the ’728 Patent “effect an improvement” in the technological field.” See Dkt. 69 at 10. AGIS
`
`specifically identified the improvements over the prior art systems. Id. In relying on Synopsys,
`
`Inc. v. Mentor Graphics Corp., Defendants omit 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 computer parts.” 839 F.3d 1138, 1149 (Fed. Cir. 2016) (emphasis added).
`
`Defendants misstate 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.’” Enfish, 822 F.3d at 1335 (citations omitted).
`
`Nonetheless, “the Court cannot simply assume Defendants’ characterization of the claims
`
`5
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 10 of 16 PageID #: 2512
`
`
`
`and implicit positions on the meaning of the claim terms are correct without a meaningful ability
`
`to examine fully what a person of ordinary skill in the art would interpret those terms to mean.”
`
`Certified Measurement, LLC v. CenterPoint Energy Hous. Elec. LLC, No. 2:14-cv-627-RSP, 2015
`
`WL 1432324, at *2 (E.D. Tex. Mar. 30, 2015).
`
`II.
`
`AGIS HAS SUFFICIENTLY PLED DIRECT AND INDIRECT INFRINGEMENT
`
`As stated in its responsive brief, AGIS has pled sufficient facts at this stage—specifically,
`
`that Defendants provide their services through a platform that involves multiple parts and AGIS
`
`has specifically identified the direct infringer. Dkt. 83 at 24-25. Despite Defendants’
`
`incorporation by reference of Uber’s Motion, they submit that it is AGIS’s burden to demonstrate
`
`that a motion to dismiss should be granted based on Uber’s analysis of the Asserted Patents, despite
`
`Defendants’ failure to submit a sufficient analysis in its Motion. See Dkt. 86 at 4 (“But AGIS does
`
`not even try to explain how the non-overlapping patents make any difference to the analysis.”).
`
`Rather than submit an analysis based on the non-overlapping patents, Defendants attempt to
`
`dismiss AGIS’s arguments entirely. However, in addition to AGIS’s arguments in response to the
`
`substantive allegations set forth by Uber, Defendants’ arguments fail for a number of reasons.
`
`Defendants fail to cite to a single case supporting their argument that such detailed
`
`infringement contentions are necessary in AGIS’s Complaint, particularly where they do not
`
`allege, they have insufficient notice of AGIS’s infringement theories. Moreover, Defendants set
`
`forth no basis for their allegation that AGIS’s Complaint must contain detailed infringement
`
`allegations against each of the Accused Products. AGIS’s Complaint sufficiently identifies the T-
`
`Mobile Accused Products, including FamilyMode, FamilyWhere, and Fleet Management,
`
`identifies each Patent-in-Suit infringed by the Accused Products, and describes with specificity the
`
`different aspects of the technology claimed in each patent, including exemplary claims that
`
`Defendants infringe. See, e.g., Dkt. 1 ¶ 128 (“For example, Family Mode and FamilyWhere, and
`
`6
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 11 of 16 PageID #: 2513
`
`
`
`devices on which the applications are installed, are programmed to obtain contact information from
`
`other users’ devices, including phone numbers.”); id. ¶ 132 (“For example, T-Mobile Fleet
`
`Management Solutions includes functionality to access a database in a cellular phone with a touch
`
`screen display, such as a driver’s smart phone.”); see Estech Sys., Inc. v. Target Corp., No. 2:20-
`
`cv-00123-JRG-RSP, 2020 WL 6496425, at *2 (E.D. Tex. Aug. 10, 2020). AGIS’s allegations are
`
`further supported by screenshots and evidence from the Accused Products. Defendants’
`
`complaints lie with details regarding how the Accused Products infringe the Asserted Patents,
`
`imposing a heightened requirement on AGIS at the pleading stage. However, this Court has denied
`
`attempts to impose such a heightened requirement on the plaintiff. See, e.g., Uniloc USA, Inc. v.
`
`Avaya, Inc., No. 6:15-cv-1168-JRG, 2016 WL 7042236, at *3 (E.D. Tex. May 13, 2016) (“The
`
`Court declines to infuse Federal Rule of Civil Procedure 8(a)’s well-established pleading standard
`
`with such a heightened burden at the initial pleading stage.”). Nonetheless, AGIS has provided
`
`sufficient detail regarding the Accused Products and how each product infringes the Patents-in-
`
`Suit.
`
`Contrary to Defendants’ allegations, AGIS does not attempt to “save its claims,” through
`
`its briefing. Rather, AGIS alleges that it has provided sufficient information at the pleading stage,
`
`including identification with “specificity [of] representative claims from each patent-in-suit that
`
`are allegedly infringed . . . , the accused products, described the accused functionality within these
`
`products, and provided descriptive illustrations of these products and the accused functionality.”
`
`Id. at *4 (“These factual allegations are sufficient to support a reasonable inference that Avaya is
`
`liable for direct infringement of the asserted claims.”); see also Estech Sys., 2020 WL 6496425, at
`
`*3 (“Target does not explain why this level of detail is not enough, especially when read in the
`
`context of Estech’s now-produced infringement contentions.”).
`
`7
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 12 of 16 PageID #: 2514
`
`
`
`A.
`
`Joint Infringement
`
`Defendants allege that joint infringement is required to find infringement of the ’724 and
`
`’728 Patents. As a preliminary matter, Defendants cannot dispute that they perform the method of
`
`the ’724 Patent but they allege that because AGIS purportedly “fails to allege that [Defendants]
`
`control[] the rider,” AGIS’s infringement claims must fail. However, AGIS’s Complaint identifies
`
`that “Defendants directly and/or indirectly infringe 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
`
`phone; accessing a database in each cell phone that includes cellular telephone numbers of each of
`
`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, ¶ 124. AGIS
`
`also alleges that “Family Mode and FamilyWhere are further programmed to permit interaction
`
`with the display where a user may select one or more symbols and where the exemplary Accused
`
`Products further permit data to be sent to other devices based on that interaction.” Id., ¶ 131. In
`
`support, AGIS cites to a screenshot of the FamilyMode application showing how users may call
`
`other users. Id. 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’” as
`
`to both the ’724 patent and the ’728 patent. Id.
`
`B.
`
`AGIS’s Claims for Direct Infringement Are Sufficient
`
`Defendants argue 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
`
`8
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 13 of 16 PageID #: 2515
`
`
`
`regarding the overlapping technology covered by the patents. Again, the Asserted Patents cover
`
`overlapping features and address the same accused features. See Dkt. 83 at 27. AGIS has pointed
`
`to specific paragraphs of its Complaint which Defendants again ignore in their 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 to its complaint.” Id. at 24 (citations omitted). Defendants’ arguments
`
`merely highlight their disputes with AGIS’s infringement theory, not its pleadings. See Dkt. 69 at
`
`15. AGIS’s Complaint places Defendants on notice of what activity is being accused of
`
`infringement and sufficiently pleads direct infringement of the Asserted Patents. See Dkt. 83 at
`
`27-29.
`
`Defendants also contend that because “AGIS does not allege that [Defendants] sell[]
`
`smartphones with the accused calling software,” it fails to allege that [Defendants] satisfy the ’728
`
`Patent’s requirements. Dkt. 69 at 13. The ’728 Patent does not require that the infringer sell
`
`smartphones and Defendants cannot cite to any claim of the ’728 Patent disclosing such
`
`requirement. To the contrary, Defendants themselves state that, for example, claim 7 of the ’728
`
`Patent requires “[a] method of establishing a cellular phone communication network for designated
`
`participants” and “providing initiating cellular phone calling software in each cellular phone,”
`
`which AGIS has sufficiently pled that Defendants meet. See Dkt. 1 ¶ 151 (emphasis added).
`
`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. 2:16-CV-00423-JRG-RSP, 2017 WL 1362700, at *4 (E.D.
`
`9
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 14 of 16 PageID #: 2516
`
`
`
`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., 2016 WL 7042236, at *3 (“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 Defendants specifically intended their customers and/or end-users to infringe and
`
`Defendants knew that the actions would constitute infringement. Dkt. 83 at 30. Contrary to
`
`Defendants’ allegations, the Complaint contains allegations that, for example, “Defendants’
`
`customers and end-users directly infringe, either literally or under the doctrine of equivalents,
`
`through their use of the inventions” and “Defendants induce this direct infringement.” See Dkt. 1
`
`¶ 165. AGIS’s Complaint also contains facts showing that Defendants advertise the Accused
`
`Products and provide instructions on how to use them. By arguing that AGIS’s indirect
`
`infringement claims are insufficient, Defendants fail to thoroughly read the entirety of AGIS’s
`
`Complaint. Nonetheless, AGIS’s Complaint is sufficient to establish its claims for indirect
`
`infringement.
`
`D. Willful Infringement
`
`Defendants mischaracterize the statements made by AGIS in its opposition to this Motion.
`
`Specifically, AGIS has not “disavowed its allegations of willful infringement.” AGIS has reserved
`
`its right to plead willful infringement as discovery progresses. See Dkt. 83. at 31.
`
`III. CONCLUSION
`
`For the foregoing reasons, none of the factors weigh in favor of a dismissal and AGIS
`
`respectfully requests that the Court deny Defendants’ Motion to Dismiss (Dkt. 46) in its entirety.
`
`10
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 15 of 16 PageID #: 2517
`
`
`
`Dated: June 22, 2021
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
` /s/ Vincent J. Rubino, III
`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 Ave., Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
`
`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
`
`ATTORNEYS FOR PLAINTIFF AGIS
`SOFTWARE DEVELOPMENT LLC
`
`
`11
`
`

`

`Case 2:21-cv-00072-JRG-RSP Document 89 Filed 06/22/21 Page 16 of 16 PageID #: 2518
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that, on June 22, 2021, all counsel of record who are
`
`deemed to have consented to electronic service are being served with a copy of this document via
`
`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
`
`/s/ Vincent J. Rubino, III
` Vincent J. Rubino, III
`
`
`
`
`
`
`
`
`
`
`