Case 2:22-cv-00263-JRG-RSP Document 129 Filed 09/20/23 Page 1 of 13 PageID #: 11123
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`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`§
`
`§
`Case No. 2:22-cv-00263-JRG-RSP
`§
`
`JURY TRIAL DEMANDED
`§
`§
`
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`v.
`
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS, AMERICA,
`INC.,
`
`
`Defendants.
`
`
`
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S
`SUPPLEMENTAL OPENING CLAIM CONSTRUCTION BRIEF
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`
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`

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`Case 2:22-cv-00263-JRG-RSP Document 129 Filed 09/20/23 Page 2 of 13 PageID #: 11124
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`
`I.
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`II.
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`III.
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`TABLE OF CONTENTS
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`Page(s)
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`INTRODUCTION .............................................................................................................. 1
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`GOVERNING LAW ........................................................................................................... 1
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`DISPUTED CLAIM TERMS ............................................................................................. 2
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`1.
`
`Term 7: “group” (Claims 1, 19, and 54 of the ’838 Patent; claims
`1, 34, and 35 of the ’829 Patent; and claims 1, 14, 17, 23, and 36
`of the ’123 Patent) ....................................................................................... 2
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`2.
`
`Term 8: “participant” (Claim 2, ’970 Patent”) ............................................ 5
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`IV.
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`CONCLUSION ................................................................................................................... 8
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`i
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`Case 2:22-cv-00263-JRG-RSP Document 129 Filed 09/20/23 Page 3 of 13 PageID #: 11125
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Cases
`AGIS Software Dev. LLC v. Google LLC,
`No. 2:19-cv-00361, Claim Construction Order, the Court ........................................................6
`
`AGIS Software Dev. LLC v. Google LLC,
`No. 5:22-cv-04826-BLF, Dkt. 434 (N.D. Cal. Apr. 3, 2023) ........................................4, 5, 6, 7
`
`AGIS Software Dev., LLC v. Huawei Device USA Inc.,
`No. 2:17-cv-513-JRG, 2018 WL 4908169 (E.D.Tex. Oct. 10, 2018) .......................................4
`
`GE Lighting Sols., LLC v. AgiLight, Inc.,
`750 F.3d 1304 (Fed. Cir. 2014)..................................................................................................2
`
`Interactive Gift Express, Inc. v. Compuserve Inc.,
`256 F.3d 1323 (Fed. Cir. 2001)..................................................................................................1
`
`Luminara Worldwide, LLC v. Liown Elecs. Co.,
`814 F.3d 1343 (Fed. Cir. 2016)..............................................................................................1, 2
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)..............................................................................................1, 2
`
`Playtex Prods., Inc. v. Procter & Gamble Co.,
`400 F.3d 901 (Fed. Cir. 2005)................................................................................................2, 3
`
`SciMed Life Sys. Inc. v. Advanced Cardiovascular Sys., Inc.,
`242 F.3d 1337 (Fed. Cir. 2001)..................................................................................................2
`
`Thorner v. Sony Comput. Ent. Am. LLC,
`669 F.3d 1362 (Fed. Cir. 2012)..................................................................................................2
`
`
`
`
`
`ii
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`Case 2:22-cv-00263-JRG-RSP Document 129 Filed 09/20/23 Page 4 of 13 PageID #: 11126
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`I.
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`INTRODUCTION
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`Pursuant to P.R. 4-5(a) and the Court’s Second Amended Docket Control Order (Dkt. 121),
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`Plaintiff AGIS Software Development, LLC (“AGIS”) hereby submits its Supplemental Opening
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`Claim Construction Brief regarding certain terms of U.S. Patent Nos. 8,213,970 (the “’970 Patent,”
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`Ex. A), 9,467,838 (the “’838 Patent,” Ex. B), 9,749,829 (the “’829 Patent,” Ex. C), and 9,820,123
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`(the “’123 Patent,” Ex. D) (together, the “Asserted Patents”).
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`This supplemental opening brief is limited to addressing two additional disputes arising
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`from Google’s and Samsung’s non-infringement arguments concerning two terms: (1) the term
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`“participant” in the ’970 Patent; and (2) the construction term “participants” within the agreed
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`construction of the term “group” to mean “more than two participants associated together.”
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`Consistent with prior claim construction findings, the Court should construe the term
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`“participant” in the ’970 Patent to have its plain meaning with a clarification that the plain meaning
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`does not exclude devices. Similarly, the Court should construe the construction term “participants”
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`within the agreed construction for “group” to mean “more than two participants associated
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`together” to have its plain meaning with a clarification that the plain meaning does not exclude
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`devices.
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`II.
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`GOVERNING LAW
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`“Absent lexicography or disavowal, [the court does] not depart from the plain meaning of
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`the claims.” Luminara Worldwide, LLC v. Liown Elecs. Co., 814 F.3d 1343, 1353 (Fed. Cir. 2016).
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`Claim terms should be interpreted based on how they are used in the claims. “[T]he claims
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`themselves provide substantial guidance as to the meaning of particular claims terms.” Phillips v.
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`AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005); Interactive Gift Express, Inc. v. Compuserve
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`Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001) (“In construing claims, the analytical focus must begin
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`and remain centered on the language of the claims themselves, for it is that language that the
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`Case 2:22-cv-00263-JRG-RSP Document 129 Filed 09/20/23 Page 5 of 13 PageID #: 11127
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`patentee chose to use to ‘particularly point . . . out and distinctly claim . . . the subject matter which
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`the patentee regards as his invention.’”). The context surrounding a claim term, including other
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`claims in the same patent, asserted or un-asserted, is “highly instructive.” Phillips, 415 F.3d at
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`1314.
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`The standards for finding lexicography and disavowal are “exacting.” GE Lighting Sols.,
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`LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014). Lexicography requires that a patentee
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`must “clearly set forth a definition of the disputed claim term” and “clearly express an intent ‘to
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`redefine the term.’” Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)
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`(internal quotation marks omitted). Disavowal requires that “the specification [or prosecution
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`history] make[] clear that the invention does not include a particular feature.” Luminara
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`Worldwide, LLC, 814 F.3d at 1353 (quoting SciMed Life Sys. Inc. v. Advanced Cardiovascular
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`Sys., Inc., 242 F.3d 1337, 1341 (Fed. Cir. 2001).). Such disavowal must be clear and unmistakable.
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`Id. The Federal Circuit has thus warned courts “not to import” extraneous limitations from the
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`specification into the claims. See, e.g., Playtex Prods., Inc. v. Procter & Gamble Co., 400 F.3d
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`901, 906 (Fed. Cir. 2005).
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`III. DISPUTED CLAIM TERMS
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`1.
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`Term 7: “group” (Claims 1, 19, and 54 of the ’838 Patent;
`claims 1, 34, and 35 of the ’829 Patent; and claims 1, 14, 17, 23,
`and 36 of the ’123 Patent)
`
`AGIS’s Proposed Construction
`“more than two participants associated
`together” with “participants” construed as
`“users” or “devices”
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`
`
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`Defendants’ Proposed Construction
`“more than two participants associated
`together”
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`2
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`Case 2:22-cv-00263-JRG-RSP Document 129 Filed 09/20/23 Page 6 of 13 PageID #: 11128
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`For the agreed construction of “group” to mean “two or more participants associated
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`together,” Plaintiff requests a clarification that the construction term “participants” comprises
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`devices and is not limited to users.
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`A representative example of the claim term “group” as recited in the asserted claims is as
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`follows:
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`A computer-implemented method comprising:
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`performing, by a first device:
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`joining a communication network corresponding to a group,
`wherein joining the communication network comprises transmitting
`a message including an identifier corresponding to the group;
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`participating in the group, wherein participating in the group
`includes sending first location information to a first server and
`receiving second location information from the first server, the first
`location information comprising a location of the first device, the
`second location information comprising one or more locations of
`one or more respective second devices included in the group;
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`Ex. B, ’838 Patent at claim 1 (emphasis added).
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`The Court should reject Defendants’ proposal to limit the construction term “participants”
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`to “users” because the proposal directly contradicts the claims themselves and their surrounding
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`context. As shown above, the surrounding claim language for the claim term “group” provides
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`highly relevant context for the plain meaning of group, i.e., participation of devices in a group.
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`Specifically, the surrounding claim language requires “one or more respective second devices
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`included in the group.” Id.; id., claim 54; Ex. D, ’123 Patent at claim 1; id., claim 14; id., claim
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`23; see also Ex. C, ’829 Patent at claim 1 (“with each device included in the group”); id., claim 34
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`(“wherein the request is received from a second device and the group includes the second device”).
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`This evidence is consistent across other claims, e.g., claim 5 of the ’838 Patent recites “one or
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`more second devices included in the group.” Given the lack of any lexicography or disavowal,
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`3
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`Case 2:22-cv-00263-JRG-RSP Document 129 Filed 09/20/23 Page 7 of 13 PageID #: 11129
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`Defendants’ proposal to restrict group to a group of users would effectively redraft the claims to
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`read out and render meaningless express limitations of the claims which require devices in a group.
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`The inclusion of the word “participants” has origins in Apple’s claim-construction proposal
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`in AGIS Software Dev., LLC v. Huawei Device USA Inc., No. 2:17-cv-513-JRG, 2018 WL
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`4908169 (E.D.Tex. Oct. 10, 2018). During that proceeding, Apple contended that the “group”
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`term should be construed as “more than two participants. . .” based on two parts of the intrinsic
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`record: (1) the patents describe two types of calls including “a group call requires more than two
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`participants”; and (2) the patents describe “a ‘plurality of devices’ that can communicate in two
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`ways,” including “devices that can ‘selectively transmit to each of the other [] or devices can
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`‘broadcast to a group.’” See id. at *23-*24 (citing to Ex. B, ’838 Patent at 2:54-60). The Court
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`adopted Apple’s proposal of “participants” to address an intrinsic record that uses the “group” term
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`to refer to devices and users. In the claims at issue, no further construction is necessary because
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`the claims themselves recite that the group comprises devices.
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`Defendants’ attempt to limit “participant” to mean “user” is a recycled attempt by Google’s
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`and Samsung’s counsel to pursue a non-infringement theory related to Find My Device (“FMD”).
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`According to Google’s and Samsung’s non-infringement theory, Google and Samsung contend
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`that “FMD allows a single user to find that user’s own device(s),” and that “locations of a user’s
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`devices cannot be accessed by other users.” See AGIS Software Dev. LLC v. Google LLC, No.
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`5:22-cv-04826-BLF, Dkt. 434 at 5 (N.D. Cal. Apr. 3, 2023); see also id. at 3-4 (“Thus, the ‘group’
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`limitations require (1) joining a group of more than two users with devices . . .”); id. at 12 (“FMD
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`can only be used by a single user and does not support location sharing between different users.”);
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`id. at 13 (“FMD does not meet the ‘group’ limitations because it is a single-user application that
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`allows only a single user to identify the location of that user’s own device(s) . . .”); id. (“To the
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`4
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`Case 2:22-cv-00263-JRG-RSP Document 129 Filed 09/20/23 Page 8 of 13 PageID #: 11130
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`extent AGIS argues that in situations where a user has more than two devices, those devices—of
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`the same single user—constitute a ‘group,’ that argument is foreclosed by the construction of
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`‘group’ as requiring ‘more than two participants,’ which refers to human users, not devices . . .”).
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`Not only does Defendants’ proposal contradict the recited language of the claims, Google’s and
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`Samsung’s attempt to avoid infringement is inconsistent with how devices are designed to work
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`and how people use devices with multiple accounts and linked accounts. See, e.g., Exhibits I-J.
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`For example, Android accounts and devices can be associated with multiple types of other accounts
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`and users, and Android users can share devices among multiple users and accounts. Id. In one
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`simple example, a household with three children may comprise five devices, three of which belong
`
`to the three children, but a parent can initiate communications with each of those devices to find
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`the locations of the devices using FMD. Id. In other words, AGIS would prevail under Google’s
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`and Samsung’s non-infringement theory because FMD does not require a single user to own all
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`participant devices in a group and because the claimed participation involves sharing between
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`devices (not merely users). However, given Google’s and Samsung’s stated intention to present
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`this interpretation to the jury, AGIS seeks a clarification that the construction term “participants”
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`is not limited to “users” in order to put this issue to rest and to avoid jury confusion and waste of
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`party resources in future proceedings.
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`Accordingly, the term “group” should be construed as “two or more participants associated
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`together,” with a clarification that the construction term “participants” comprises devices and is
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`not limited to users.
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`2.
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`Term 8: “participant” (Claim 2, ’970 Patent”)
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`AGIS’s Proposed Construction
`Plain and ordinary meaning.
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`Defendants’ Proposed Construction
`“users”
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`5
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`Case 2:22-cv-00263-JRG-RSP Document 129 Filed 09/20/23 Page 9 of 13 PageID #: 11131
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`Plaintiff proposes the term “participant” should be construed according to its plain and
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`ordinary meaning because a POSITA would understand that no further construction is necessary
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`to understand the meaning of this term. For similar reasons as provided above, because Google
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`and Samsung intend on importing additional limitations to exclude “devices” from the scope of
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`“participants” in support of their non-infringement theories, Plaintiff requests a clarification from
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`the Court that “participant” is not limited to a user and does not exclude a device.
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`Additionally, with respect to the ’970 Patent, this Court has already rejected two similar
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`arguments in which (1) Google attempted to construe the terms “sender” and “recipient” (which
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`refer to the role of participants, i.e., devices) to mean “people”; and (2) Google attempted to inject
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`a limitation of ownership of devices. For example, in the AGIS Software Dev. LLC v. Google LLC,
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`No. 2:19-cv-00361, Claim Construction Order, the Court found that “Claims 1 and 2 refer to
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`systems of devices and do not require human beings as part of the systems,” and “Claim 10 is a
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`method claim that refers to steps performed by devices rather than by human beings.” See Dkt.
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`87-8, Exhibit G at 30. Further, the Court found that the terms “sender” and “recipient” referred to
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`the role of a device in the context of a particular communication and rejected “Defendants’
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`proposals of ‘belonging to the recipient’ and ‘belonging to the sender.’” Id. at 30.
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`The Court’s prior analysis should apply with equal force to the term participant. Google’s
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`and Samsung’s non-infringement contention that “FMD allows a single user to find that user’s
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`own device(s),” and that “locations of a user’s devices cannot be accessed by other users” are
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`based on proposed constructions that directly contradict this Court’s prior claim construction order
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`in AGIS v. Google rejecting proposals to restrict participants to people and to limit devices on the
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`basis of ownership. Compare Dkt. 87-8, Exhibit G at 28-30 with AGIS Software Dev. LLC v.
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`Google LLC, No. 5:22-cv-04826-BLF, Dkt. 434 at 5 (N.D. Cal. Apr. 3, 2023); see also id. at 3-4
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`6
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`Case 2:22-cv-00263-JRG-RSP Document 129 Filed 09/20/23 Page 10 of 13 PageID #:
`11132
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`(“Thus, the ‘group’ limitations require (1) joining a group of more than two users with
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`devices . . .”); id. at 12 (“FMD can only be used by a single user and does not support location
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`sharing between different users.”); id. at 13 (“FMD does not meet the ‘group’ limitations because
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`it is a single-user application that allows only a single user to identify the location of that user’s
`
`own device(s) . . .”); id. (“To the extent AGIS argues that in situations where a user has more than
`
`two devices, those devices—of the same single user—constitute a ‘group,’ that argument is
`
`foreclosed by the construction of ‘group’ as requiring ‘more than two participants,’ which refers
`
`to human users, not devices . . .”). Again, Defendants’ proposal contradicts the recited language
`
`of the claims, and Google’s and Samsung’s attempt to avoid infringement is inconsistent with how
`
`devices are designed to work and how people use devices with multiple accounts and linked
`
`accounts. See, e.g., Exhibits I-J. For example, Android accounts and devices can be associated
`
`with multiple types of other accounts and users, and Android users can share devices among
`
`multiple users and accounts. Id. In one simple example, a household with three children may
`
`comprise five devices, three of which belong to the three children, but a parent can initiate
`
`communications with each of those devices to find the locations of the devices using FMD. Id. In
`
`other words, AGIS would prevail under Google’s and Samsung’s non-infringement theory because
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`FMD does not require a single user to own both participant devices (sender and recipient) and
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`because the claimed communications system involve transmissions between devices (not merely
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`users).1
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`There is no lexicography or disavowal of scope related to a patentee’s express intent to
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`limit the term participant, and the intrinsic record does not compel the limitation sought by
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`Defendants. The specification uses the term “participant” to primarily refer to devices and makes
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`1 Plaintiff notes that the term “group” is not recited in the asserted claims of the ’970 Patent.
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`Case 2:22-cv-00263-JRG-RSP Document 129 Filed 09/20/23 Page 11 of 13 PageID #:
`11133
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`clear that devices may be associated with one or more users at any given time. Neither the claims
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`nor the specification places any limitation on ownership or restriction on the transfer of devices
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`between users under any circumstances. Where the patentee intends to refer to a user, the
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`specification makes express reference to a “participant user” or “participants users.” Ex. A, ’970
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`Patent at 5:26-27 (“Each participant user would have a device 10 shown in Figs. 1a and 1b.”;
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`6:22-25 (“Each PDA/cell phone user device is identified on the map display of the other
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`participants users’ phone devices by a display symbol…”) (emphases added). Thus, the intrinsic
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`record supports a finding that the claims refer to devices and do not require a human being as part
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`of the system. The intrinsic record does not support a finding that participants must be limited to
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`users only.
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`Accordingly, the term “participants” should be given its plain meaning with a clarification
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`that “participants” comprises devices and is not limited to users.
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`IV. CONCLUSION
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`For all the foregoing reasons, AGIS respectfully requests that the Court adopt AGIS’s
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`proposed constructions.
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`8
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`Case 2:22-cv-00263-JRG-RSP Document 129 Filed 09/20/23 Page 12 of 13 PageID #:
`11134
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`Dated: September 20, 2023
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`Respectfully submitted,
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`
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`
`
` /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
`Enrique W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Avenue,
`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
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`Case 2:22-cv-00263-JRG-RSP Document 129 Filed 09/20/23 Page 13 of 13 PageID #:
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of this document via the Court’s
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`CM/ECF system per Local Rule CV-5(a)(3) on September 20, 2023.
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`/s/ Vincent J. Rubino, III
` Vincent J. Rubino, III
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