Case 2:22-cv-00263-JRG-RSP Document 40 Filed 12/27/22 Page 1 of 14 PageID #: 1152
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Plaintiff,
`
`
`
`v.
`
` Civil Action No. 2:22-cv-00263-JRG-RSP
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA, INC.,
`
` JURY TRIAL DEMANDED
`
`Defendants.
`
`DEFENDANTS’ MOTION TO STAY
`
`

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`Case 2:22-cv-00263-JRG-RSP Document 40 Filed 12/27/22 Page 2 of 14 PageID #: 1153
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
`
`III.
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`IV.
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`INTRODUCTION .............................................................................................................. 1
`
`STATEMENT OF FACTS ................................................................................................. 2
`
`A.
`
`B.
`
`C.
`
`Allegations in the Amended Complaint .................................................................. 2
`
`Previous Allegations in AGIS I ............................................................................... 2
`
`The AGIS ITC Action ............................................................................................. 3
`
`LEGAL STANDARDS ...................................................................................................... 4
`
`ARGUMENT ...................................................................................................................... 4
`
`A.
`
`B.
`
`A stay under 28 U.S.C. § 1659(a) is warranted ...................................................... 5
`
`Alternatively, a discretionary stay is warranted ...................................................... 6
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`V.
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`CONCLUSION ................................................................................................................... 9
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`

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`Case 2:22-cv-00263-JRG-RSP Document 40 Filed 12/27/22 Page 3 of 14 PageID #: 1154
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
`
`Black Hills Media, LLC v. Samsung Electronics Co., Ltd.,
`Case No. 2:13-CV-00379-JRG, 2014 WL 12951780 (E.D. Tex. Mar. 14, 2014) .................4, 7
`
`Datatreasury Corp. v. Wells Fargo & Co.,
`490 F. Supp. 2d 749 (E.D. Tex. 2006) ...................................................................................4, 6
`
`Enterprise Systems Technologies S.a.r.l v. Motorola Mobility Holdings, Inc.,
`Case No. 6:14-cv-553-MHS (E.D. Tex. Nov. 4, 2014) .........................................................7, 8
`
`In re Princo Corp.,
`
`486 F.3d 1365 (Fed. Cir. 2007) .................................................................................................6
`
`Landis v. N. Am. Co.,
`299 U.S. 248 (1936) ...................................................................................................................4
`
`Nichia Corp. v. Mary Elle Fashions, Inc.,
`Case No. 2:16-CV-615-JRG, 2016 WL 9558954 (E.D. Tex. Dec. 22, 2016) ...........................9
`
`Orion IP, LLC v. Home Depot USA, Inc.,
`Case No. 2:05-cv-00306-LED, 2005 WL 8161153 (E.D. Tex. Dec. 7, 2005) ..........................7
`
`SSL Servs., LLC v. Cisco Sys., Inc.,
`Case No. 2:15-CV-433-JRG-RSP, 2016 WL 3523871 (E.D. Tex. June 28, 2016) ...................8
`
`VirtualAgility Inc. v. Salesforce.com, Inc.,
`759 F.3d 1307 (Fed. Cir. 2014)..................................................................................................7
`
`STATUTES
`
`28 U.S.C. § 1659(a) .........................................................................................................1, 4, 5, 6, 9
`
`OTHER AUTHORITIES
`
`H.R. Rep. No. 103-826(I), as reprinted in 1994 U.S.C.C.A.N. 3773..............................................7
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`

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`I.
`
`INTRODUCTION
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`Plaintiff AGIS Software Development LLC (“AGIS”) first sued Defendants Samsung
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`Electronics Co., Ltd. and Samsung Electronics America, Inc. (collectively, “Samsung”) in 2019
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`(“AGIS I”), alleging infringement of two AGIS patents by Samsung’s “manufacture, use, [sale],
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`offer for sale, and/or import[ation] into the United States [of] electronic devices, such as Android-
`
`based smartphones, tablets, and smart watches”—essentially Samsung’s Galaxy devices. See Case
`
`No. 2:19-cv-00362 (E.D. Tex.), ECF 1 (the “AGIS I Complaint”), ¶ 15. Not achieving the results
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`it wanted from the AGIS I lawsuit (which is still pending in the Northern District of California as
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`Case No. 5-22-cv-04825), AGIS is now attempting two more bites at the apple with (1) this lawsuit
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`(“AGIS II”) alleging infringement of four AGIS patents (the same two patents asserted in AGIS I
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`plus two more from the same patent family) against the same Defendants (Samsung) accusing the
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`same products (Samsung’s Galaxy devices) and (2) another action filed in the International Trade
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`Commission on November 16, 2022 against Samsung and others alleging infringement of the same
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`four AGIS patents at issue here against the same Galaxy devices. Certain Location-Sharing
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`Systems, Related Software, Components Thereof, and Products Containing the Same, Inv. No.
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`337-TA-3655 (Nov. 16, 2022) (the “AGIS ITC Action”).
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`As explained in a concurrently filed partial motion to dismiss this case, the majority of
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`AGIS’s allegations in its Amended Complaint should be dismissed.1 Samsung brings this motion
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`seeking a stay of the remaining allegations in the Amended Complaint after ruling on the motion
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`to dismiss, or a stay of the case in its entirety, pursuant to 28 U.S.C. § 1659(a) which provides that
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`1 In that motion, Samsung is seeking partial dismissal because (1) pursuant to 28 U.S.C. § 1498(a),
`AGIS’s exclusive remedy for the purported acts of infringement relating to the Team Awareness
`Kit, or “TAK,” suite of apps is an action against the U.S. Government in the United States Court
`of Federal Claims; and (2) the allegations of infringement in Counts III and IV of the Amended
`Complaint are barred by the doctrine of claim splitting.
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`

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`a “district court shall stay, until the determination of the Commission becomes final, proceedings
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`in the civil action with respect to any claim that involves the same issues involved in the proceeding
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`before the Commission.” Alternatively, a discretionary stay of all non-dismissed allegations, or
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`the entire case, is warranted based on the significant overlap of issues among AGIS’s multiple
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`suits. To proceed on all three cases would be manifestly inefficient and would reward AGIS for its
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`abuse of judicial resources and calculated campaign of harassment against Samsung. AGIS could
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`have, and should have, brought all of its infringement allegations against Samsung in one suit.
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`II.
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`STATEMENT OF FACTS
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`A.
`
`Allegations in the Amended Complaint
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`In its Amended Complaint, AGIS alleges Samsung infringes U.S. Patent Nos. 8,213,970
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`(“’970 Patent”); 9,467,838 (“’838 Patent”); 9,749,829 (“’829 Patent”); and 9,820,123 (“’123
`
`Patent”). Am. Compl., ECF 22, ¶¶ 21, 31, 46, 61. The four patents are all in the same family
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`(stemming from the same parent application through a long line of continuations and
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`continuations-in-part). Each of the four asserted patents is directed, generally, to coordinating or
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`managing two or more people through the use of a communications network. See ’970 Patent,
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`ECF 22-1, 1:15-23; ’838 Patent, ECF 22-2, 1:30-43; ’829 Patent, ECF 22-3, 1:33-46; ’123 Patent,
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`ECF 22-4, 1:33-46. The Amended Complaint alleges infringement by a list of 264 Samsung
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`Galaxy devices that are purportedly “configured and/or adapted with certain map-based
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`communication applications, product, and solutions” and identifies several examples of such
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`applications, products and solutions, including a U.S. Government-developed and owned suite of
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`apps, known as TAK, and a Samsung Knox feature. Am. Compl., ¶ 16.
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`B.
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`Previous Allegations in AGIS I
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`AGIS’s allegations of infringement of the ’829 and ’123 Patents in AGIS II are not new;
`
`AGIS also asserted, and continues to assert, the same two patents in AGIS I against the very same
`
`2
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`

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`devices alleged to infringe those patents here. On November 4, 2019, AGIS filed a lawsuit in this
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`District against Samsung alleging infringement of the ’829 and ’123 Patents, accusing Samsung
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`of manufacturing, using, selling, offering for sale, and/or importing into the United States allegedly
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`infringing electronic devices, such as Android-based smartphones, tablets, and smart watches,
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`including a list of 269 specific Galaxy devices. See AGIS I Complaint, ¶ 15. AGIS further alleged
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`that these devices “are pre-configured or adapted with map-based communication applications
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`and/or features,” and provided examples. Id. The AGIS I list of accused devices is substantively
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`identical to the list of 264 specific Galaxy devices accused here. Am. Complaint, ¶ 15.
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`C.
`
`The AGIS ITC Action
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`On November 16, 2022, AGIS filed a complaint at the ITC against Samsung and 25 other
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`proposed respondents. ITC Compl. (Excerpt), Exhibit 1.2 In the ITC Complaint, AGIS alleges
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`that Samsung infringes the same four patents at issue here and one additional patent. Id., ¶ 149.
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`The list of allegedly infringing Samsung products in the ITC complaint is identical to the list of
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`264 products alleged to infringe AGIS’s patents in the AGIS II Amended Complaint plus one
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`additional recent product. Id., ¶ 150. The particular exemplary features of the Samsung products
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`alleged to infringe in the ITC Complaint include certain Google apps and/or services that are also
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`accused in AGIS I. Compare, e.g., Ex. 14 to ITC Compl. (Excerpt), Exhibit 2, at 2 (“The Accused
`
`Products further comprise the following Android-based applications and/or services: Google
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`Maps, Google Play Services, Google Mobile Services, Google Contacts, Google Messages,
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`Google Chrome, and any variants thereof imported with the Samsung products during and after
`
`2016.”) with AGIS I Complaint, ¶ 35 (alleging infringement by Google Maps, Google Play Protect,
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`2 The investigation was instituted on November 22, 2022. Institution Decision, Exhibit 3, Certain
`Location-Sharing Systems, Related Software, Components Thereof, and Products Containing the
`Same, Inv. No. 337-TA-3655 (Nov. 22, 2022).
`
`3
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`

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`Google Messages, and Google Chrome).
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`III.
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`LEGAL STANDARDS
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`“In a civil action involving parties that are also parties to a proceeding before the United
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`States International Trade Commission under section 337 of the Tariff Act of 1930, at the request
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`of a party to the civil action that is also a respondent in the proceeding before the Commission, the
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`district court shall stay, until the determination of the Commission becomes final, proceedings in
`
`the civil action with respect to any claim that involves the same issues involved in the proceeding
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`before the Commission . . .” 28 U.S.C. § 1659(a). To the extent a stay under § 1659(a) is not
`
`mandatory, whether to stay the case is a matter within the Court’s discretion. See Landis v. N. Am.
`
`Co., 299 U.S. 248, 249-58 (1936). “How this can best be done calls for the exercise of judgment,
`
`which must weigh competing interests and maintain an even balance.” Id. at 254-55. In deciding
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`whether to exercise its discretion to stay a case, this Court considers the following factors: “(1)
`
`whether a stay will unduly prejudice or present a clear tactical disadvantage to the nonmoving
`
`party; (2) whether a stay will simplify the issues in question and trial of the case; and (3) whether
`
`discovery is complete and whether a trial date has been set.” Datatreasury Corp. v. Wells Fargo
`
`& Co., 490 F. Supp. 2d 749, 754 (E.D. Tex. 2006) (citation omitted); see also Black Hills Media,
`
`LLC v. Samsung Electronics Co., Ltd., Case No. 2:13-CV-00379-JRG, 2014 WL 12951780, at *1
`
`(E.D. Tex. Mar. 14, 2014) (staying non-ITC portions of case).
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`IV.
`
`ARGUMENT
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`Concurrently with this stay motion, Samsung filed a partial motion to dismiss AGIS’s
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`complaint. To the extent not disposed of by the motion to dismiss, the remaining portions of the
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`case should be stayed in light of the other suits filed by AGIS alleging infringement of the same
`
`4
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`

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`patents by the same products.3 First, a stay is warranted under 28 U.S.C. § 1659(a). Second, and
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`alternatively, each of the three factors the Court looks to in deciding a discretionary stay motion
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`clearly favors a stay.
`
`A.
`
`A stay under 28 U.S.C. § 1659(a) is warranted
`
`In a civil action in which the defendant is also a respondent in a proceeding before the
`
`United States International Trade Commission, “the district court shall stay, until the determination
`
`of the Commission becomes final, proceedings in the civil action with respect to any claim that
`
`involves the same issues in the proceeding before the Commission. . . .” 28 U.S.C. § 1659(a).4
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`Here, AGIS’s Amended Complaint asserts claims for infringement of four patents—the ’970, ’838,
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`’829, and ’123 Patents—based on the making, using, selling, offering for sale and/or importation
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`of a list of 264 Samsung Galaxy devices. See Am. Compl., ¶¶ 16, 20, 30, 46, 61. In the ITC,
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`AGIS alleges infringement of the same four patents (plus one more) based on the making, using,
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`selling, offering for sale and/or importation of a list of 265 products that includes all 264 products
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`alleged to infringe in the district court. See ITC Compl., Exhibit 1, ¶¶ 149, 150.
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`In the two proceedings to date, AGIS has directed its infringement allegations toward
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`different features of the same products—TAK and Knox in this Court, and several Google apps in
`
`the ITC. However, both the Amended Complaint filed here and the ITC Complaint state that the
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`infringement allegations directed to particular features are merely exemplary. E.g., Am. Compl.,
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`¶ 16 (“The Accused Products, which include software components such as, but not limited to,
`
`Samsung Tactical, TAK and ATAK solutions and Samsung Knox . . . .”) (emphasis added); ITC
`
`3 The Court could also elect to grant the stay without reaching the motion to dismiss.
`4 Section 1659(a) also requires that the stay request is made within 30 days after the party is named
`as a respondent in the Commission proceeding or within 30 days after the district court action is
`filed, whichever is later. Here, Samsung was named as a respondent on December 22, 2022, when
`the investigation was instituted. Exhibit 3.
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`5
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`

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`Compl., Exhibit 1, ¶ 107 (“The specific instances set forth below are representative examples of
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`the Samsung Respondents’ unlawful importation, sale for importation, and/or sale within the
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`United States after importation of infringing products.”) (emphasis added). Because each
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`complaint identifies only exemplary accused features, the respective scopes of the two complaints
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`encompass all of “the same issues” —e.g., claim construction, invalidity and infringement—with
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`respect to the same four patents and the same 264 Samsung Galaxy devices. Allowing AGIS’s
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`infringement claims to proceed here on the same patents and products at issue in the ITC would
`
`result in the duplicative efforts which §1659(a) is intended to prevent. See In re Princo Corp., 486
`
`F.3d 1365, 1368 (Fed. Cir. 2007) (“The purpose of § 1659(a) was to prevent infringement
`
`proceedings from occurring in two forums at the same time.”) (internal quotes and citation
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`omitted). Thus, a stay under 28 U.S.C. § 1659(a) is warranted.
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`B.
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`Alternatively, a discretionary stay is warranted
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`If the Court determines that a stay of the case is not mandatory under § 1659(a), judicial
`
`efficiency nevertheless favors a stay. In deciding whether to exercise its discretion to stay a case,
`
`this Court considers the following factors: “(1) whether a stay will unduly prejudice or present a
`
`clear tactical disadvantage to the nonmoving party; (2) whether a stay will simplify the issues in
`
`question and trial of the case; and (3) whether discovery is complete and whether a trial date has
`
`been set.” Datatreasury Corp., 490 F. Supp. 2d at 754 (citation omitted).
`
`1.
`
`A stay will neither unduly prejudice nor present a clear tactical
`disadvantage to AGIS
`
`If the Court determines that a stay of the case is not mandatory based on the ITC action
`
`due to potentially different infringement issues—albeit relating to the same allegedly infringed
`
`patents and the same allegedly infringing products—that only serves to highlight AGIS’s
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`gamesmanship. AGIS’s divvying up of infringement theories between this district court case and
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`6
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`

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`the ITC (while also attempting to leave open the possibility of adding more allegations and theories
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`to each case) is apparently an effort to try to avoid a stay of this case under Section 1659(a) and/or
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`an attempt to impose additional, gratuitous burdens on Samsung. Far from unduly prejudicing or
`
`otherwise imposing a tactical disadvantage upon AGIS, a stay would be in keeping with the
`
`legislative purpose of the statute which was “to address the possibility that infringement
`
`proceedings may be brought against imported goods in two forums at the same time.” H.R. Rep.
`
`No. 103-826(I), at 140, as reprinted in 1994 U.S.C.C.A.N. 3773. AGIS should not be heard to
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`complain about a stay here as it “brought these circumstances on [itself] by filing its complaint in
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`the ITC [shortly] after filing the present suit. [AGIS] could have and should have anticipated the
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`possibility (if not the probability) of Defendants seeking to stay the non-ITC portion of this case.”
`
`Black Hills Media, LLC, 2014 WL 12951780, at *1; see also Enterprise Systems Technologies
`
`S.a.r.l v. Motorola Mobility Holdings, Inc., Case No. 6:14-cv-553-MHS, Dkt. 56 at 3 (E.D. Tex.
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`Nov. 4, 2014) (Exhibit 4, hereto) (similarly finding no prejudice where “Plaintiff should have
`
`anticipated the possibility (if not the probability) of Defendants’ seeking to stay the non-ITC
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`portion of this case.”).
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`The pending AGIS I case further undermines any claim of prejudice from AGIS. AGIS
`
`should have included all of its infringement allegations against Samsung’s Galaxy products in that
`
`case. Instead, either AGIS was not diligent as required by the rules of this Court in identifying
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`those allegedly infringing features, Orion IP, LLC v. Home Depot USA, Inc., Case No. 2:05-cv-
`
`00306-LED, Dkt. No. 42, 2005 WL 8161153 at *1 (E.D. Tex. Dec. 7, 2005) (the “Patent Rules
`
`demonstrate high expectations as to plaintiff’s preparedness before bringing suit”), or AGIS
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`undertook a deliberate strategy of excluding certain features from AGIS I to keep “backup claims”
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`in reserve. Regardless of the reason, AGIS’s calculated campaign of harassment should not be
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`7
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`

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`Case 2:22-cv-00263-JRG-RSP Document 40 Filed 12/27/22 Page 11 of 14 PageID #: 1162
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`rewarded with the ability to maintain a three-front, and manifestly inefficient, offensive against
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`Samsung.
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`Finally, AGIS is a patent assertion entity that does not compete with Samsung. To the
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`extent any infringement allegations remain after a stay, AGIS can be fully compensated for any
`
`alleged harm by monetary damages. See VirtualAgility Inc. v. Salesforce.com, Inc., 759 F.3d 1307,
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`1318 (Fed. Cir. 2014) (noting “[a]stay will not diminish the monetary damages to which [plaintiff]
`
`will be entitled if it succeeds in its infringement suit—it only delays realization of those damages”);
`
`SSL Servs., LLC v. Cisco Sys., Inc., Case No. 2:15-CV-433-JRG-RSP, 2016 WL 3523871, at *2
`
`(E.D. Tex. June 28, 2016) (“Where a plaintiff seeks only money damages, a stay will not diminish
`
`the monetary damages to which plaintiff will be entitled if it succeeds”) (internal quotation marks
`
`and alterations omitted).
`
`2.
`
`A stay will simplify the issues in question and trial of the case
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`AGIS’s allegations in both this case and the AGIS ITC Action relate to the exact same
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`patents and the exact same products. They present many common, if not identical, issues of both
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`law and fact (e.g., claim construction, invalidity, product sales, product development,
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`infringement) that are best considered in a single proceeding. See Enterprise Systems, Case No.
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`6:14-cv-553-MHS, Dkt. 56 at 3 (Exhibit 4, hereto). Similarly, the AGIS I case and its companion
`
`cases AGIS Software Development LLC v. Google LLC, 5-22-cv-04826 (N.D. Cal.) and AGIS
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`Software Development LLC v. Waze Mobile Ltd., 5-22-cv-04827 (N.D. Cal.) which were
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`transferred from this District with AGIS I are in their advanced stages awaiting a new trial date and
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`pre-trial proceedings, and, collectively, will also address all four patents, the same products
`
`accused here and some of the same accused features. The likelihood of any issues remaining in
`
`this case following a stay is very low, while simplification, e.g., on claim construction, invalidity,
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`8
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`Case 2:22-cv-00263-JRG-RSP Document 40 Filed 12/27/22 Page 12 of 14 PageID #: 1163
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`and issues common to AGIS’s very similar infringement allegations among all of its cases, is a
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`given. The simplification factor therefore favors a stay.
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`3.
`
`This case is in its infancy
`
`The early stage of this case favors a stay. The Docket Control Order in this case was just
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`entered earlier this month, on December 2, 2022. ECF 28. Discovery requests were only served
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`last week by AGIS, the day after Samsung requested a conference to discuss this stay motion.
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`Aside from AGIS’s service of infringement contentions, no significant steps have been taken in
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`this case by the parties or by the Court. Under the Docket Control Order, a claim construction
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`hearing is set for September 1, 2023, fact discovery closes October 12, 2023, and expert discovery
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`closes November 20, 2023. Id. While a trial date has been set, it is not until March 4, 2024. Id.
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`The early stage of these proceedings weighs in favor of a stay. Nichia Corp. v. Mary Elle Fashions,
`
`Inc., Case No. 2:16-CV-615-JRG, 2016 WL 9558954, at *2 (E.D. Tex. Dec. 22, 2016).
`
`V.
`
`CONCLUSION
`
`Samsung respectfully requests that the Court stay the portion of this case that remains after
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`deciding Samsung’s co-pending motion to dismiss, or stay the case in its entirety, either pursuant
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`to 28 U.S.C. § 1659(a) or under its inherent powers.
`
`Dated: December 27, 2022
`
`
`
`Respectfully submitted,
`
`/s/ Neil P. Sirota
`
` Neil P. Sirota
`
`neil.sirota@bakerbotts.com
` Margaret M. Welsh
` margaret.welsh@bakerbotts.com
` BAKER BOTTS L.L.P.
`
`30 Rockefeller Plaza
` New York, NY 10112-4498
`
`Phone: (212) 408-2500
`
`Fax: (212) 408-2501
`
`9
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`Case 2:22-cv-00263-JRG-RSP Document 40 Filed 12/27/22 Page 13 of 14 PageID #: 1164
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` Melissa R. Smith
`
`Texas State Bar No. 24001351
` melissa@gillamsmithlaw.com
` GILLAM & SMITH, LLP
`
`303 South Washington Avenue
` Marshall, Texas 75670
`
`Phone: (903) 934-8450
`
`Fax: (903) 934-9257
`
`Counsel for Defendants Samsung
`Electronics Co., Ltd. and Samsung
`Electronics America, Inc.
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`10
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`

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`Case 2:22-cv-00263-JRG-RSP Document 40 Filed 12/27/22 Page 14 of 14 PageID #: 1165
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record who are deemed to have consented to electronic
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`service are being served this 27th day of December, 2022, with a copy of this document via the
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`Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`Dated: December 27, 2022
`
`/s/ Neil P. Sirota
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`CERTIFICATE OF CONFERENCE
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`On December 23, 2022, pursuant to Local Rule CV-7(h), counsel for Defendants, Melissa
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`Smith, Neil Sirota and Margaret Welsh, conferred telephonically with counsel for Plaintiff,
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`Enrique Iturralde and Amy Park, and counsel for Plaintiff indicated that Plaintiff is opposed to the
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`relief sought by this Motion.
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`Dated: December 27, 2022
`
`/s/ Neil P. Sirota
`
`11
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`