Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 1 of 14 PageID #: 950
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT §
`
`LLC,
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`§
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`
`§
`Case No. 2:22-cv-00443-JRG
`v.
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`§
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` (Lead Case)
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`§
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`HMD GLOBAL, et al.
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`
`§
`______________________________________________________________________
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`
`AGIS SOFTWARE DEVELOPMENT §
`LLC,
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`
`§
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`
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`
`
`§
`v.
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`§
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`§
`PANASONIC CORPORATION, et al.
`§
`
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`
`
`Case No. 2:22-cv-00447-JRG
` (Member Case)
`
`
`
`
`PANASONIC CORPORATION AND PANASONIC CORPORATION OF NORTH
`AMERICA’S RESPONSE TO PLAINTIFF’S COMPLAINT FOR PATENT
`INFRINGEMENT
`
`Panasonic Corporation and Panasonic Corporation of North America (“Panasonic”) hereby
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`respond to and answer the numbered paragraphs of the Complaint (“Complaint”) filed by AGIS
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`Software Development, LLC (“AGIS” or “Plaintiff”), as follows. In addition, unless specifically
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`admitted, Panasonic Corporation denies each and every allegation of the Complaint, as it does not
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`make, use, sell or import any Accused Product nor have any contacts with the State of Texas or
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`this District.
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`THE PARTIES
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`1.
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`Panasonic is without knowledge or information sufficient to form a belief as to the
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`truth of the remaining allegations and characterizations contained in this Paragraph of the
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`Complaint, and therefore denies them.
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`2.
`
`Panasonic admits that Panasonic Corporation is a Japanese corporation. Panasonic
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`denies the remaining allegations and characterizations contained in Paragraph 2 of the Complaint.
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`Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 2 of 14 PageID #: 951
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`3.
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`Panasonic admits that Panasonic Corporation of North America is headquartered at
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`Two Riverfront Plaza, 828 McCarter Highway, Newark, New Jersey 07102. Panasonic denies that
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`Panasonic Corporation of North America manufactures products or sells smartphones. Panasonic
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`denies the remaining allegations contained in Paragraph 3 of the Complaint.
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`4.
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`Panasonic admits that its products are sold through resellers in the State of Texas.
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`Panasonic denies the remaining allegations contained in Paragraph 4 of the Complaint.
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`JURISDICTION AND VENUE
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`5.
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`Panasonic admits that AGIS’s Complaint purports to allege an action for patent
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`infringement arising under the patent laws of the United States, 35 U.S.C. §§ 1, et seq. Panasonic
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`admits that this Court has subject matter jurisdiction over the causes of action asserted in the
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`Complaint, but denies there is any factual or legal basis for AGIS’s claims.
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`6.
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`To the extent Paragraph 6 of the Complaint contains conclusions of law, no
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`response is necessary. Panasonic specifically denies that it has committed or continues to commit
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`any act of patent infringement in the State of Texas or this District, as alleged in the Complaint.
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`Panasonic denies the remaining allegations in Paragraph 6 of the Complaint.
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`7.
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`To the extent Paragraph 7 of the Complaint contains conclusions of law, no
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`response is necessary. Panasonic specifically denies that it has committed or continues to commit
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`any act of patent infringement in the State of Texas or this District, as alleged in the Complaint.
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`Panasonic denies the remaining allegations in Paragraph 7 of the Complaint.
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`PATENTS-IN-SUIT
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`8.
`
`Panasonic denies the allegations in Paragraph 8 of the Complaint insofar as they
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`purport to attribute to the ’970 patent anything that is not stated therein. Panasonic admits that the
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`’970 patent is titled “Method of Utilizing Forced Alerts for Interactive Remote Communications”;
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`Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 3 of 14 PageID #: 952
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`that it names Malcolm K. Beyer as the inventor; that its application was filed November 26, 2008;
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`that it purports to claim priority through a chain of continuation-in-part applications to a patent
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`application filed September 21, 2004; that the patent issued July 3, 2012; and that the patent will
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`expire no later than June 2, 2025. Panasonic admits that link provided purports to be a certified
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`copy of the ’970 patent. Panasonic is without knowledge or information sufficient to form a belief
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`as to the truth of the remaining allegations and characterizations contained in this Paragraph of the
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`Complaint, and therefore denies them.
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`9.
`
`Panasonic denies the allegations in Paragraph 9 of the Complaint insofar as they
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`purport to attribute to the ‘251 patent anything that is not stated therein. Panasonic admits that the
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`’251 patent is titled “Method to Provide Ad Hoc and Password Protected Digital and Voice
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`Networks”; that it names Malcolm K. Beyer and Christopher R. Rice as the inventors; that its
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`application was filed February 27, 2015; that it purports to claim priority through a chain of
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`continuation-in-part applications to a patent application filed September 21, 2004; that the patent
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`issued September 13, 2016; and that the patent will expire no later than September 21, 2024.
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`Panasonic admits that link provided purports to be a certified copy of the ’251 patent. Panasonic
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`is without knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations and characterizations contained in this Paragraph of the Complaint, and therefore
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`denies them.
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`10.
`
`Panasonic denies the allegations in Paragraph 10 of the Complaint insofar as they
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`purport to attribute to the ’838 patent anything that is not stated therein. Panasonic admits that the
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`’838 patent is titled “Method to Provide Ad Hoc and Password Protected Digital and Voice
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`Networks”; that it names Malcolm K. Beyer and Christopher R. Rice as the inventors; that its
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`application was filed October 31, 2014; that it purports to claim priority through a chain of
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`Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 4 of 14 PageID #: 953
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`continuation-in-part applications to a patent application filed September 21, 2004; that the patent
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`issued September 13, 2016; and that the patent will expire no later than September 21, 2024.
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`Panasonic admits that link provided purports to be a certified copy of the ’838 patent. Panasonic
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`is without knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations and characterizations contained in this Paragraph of the Complaint, and therefore
`
`denies them.
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`11.
`
`Panasonic denies the allegations in Paragraph 11 of the Complaint insofar as they
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`purport to attribute to the ’829 patent anything that is not stated therein. Panasonic admits that the
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`’829 patent is titled “Method to Provide Ad Hoc and Password Protected Digital and Voice
`
`Networks”; that it names Malcolm K. Beyer and Christopher R. Rice as the inventors; that its
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`application was filed February 27, 2015; that it purports to claim priority through a chain of
`
`continuation-in-part applications to a patent application filed September 21, 2004; that the patent
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`issued August 29, 2017; and that the patent will expire no later than September 21, 2024. Panasonic
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`admits that link provided purports to be a certified copy of the ’829 patent. Panasonic is without
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`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
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`and characterizations contained in this Paragraph of the Complaint, and therefore denies them.
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`12.
`
`Panasonic denies the allegations in Paragraph 12 of the Complaint insofar as they
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`purport to attribute to the ’123 patent anything that is not stated therein. Panasonic admits that the
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`‘123 patent is titled “Method to Provide Ad Hoc and Password Protected Digital and Voice
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`Networks”; that it names Malcolm K. Beyer and Christopher R. Rice as the inventors; that its
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`application was filed September 1, 2016; that it purports to claim priority through a chain of
`
`continuation-in-part applications to a patent application filed September 21, 2004; that the patent
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`issued November 14, 2017; and that the patent will expire no later than September 21, 2024.
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`Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 5 of 14 PageID #: 954
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`Panasonic admits that link provided purports to be a certified copy of the ‘123 patent. Panasonic
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`is without knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations and characterizations contained in this Paragraph of the Complaint, and therefore
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`denies them.
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`13.
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`Panasonic is without knowledge or information sufficient to form a belief as to the
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`truth of the remaining allegations and characterizations contained in this Paragraph of the
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`Complaint, and therefore denies them.
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`FACTUAL ALLEGATIONS
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`14.
`
`Panasonic is without knowledge or information sufficient to form belief as to the
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`truth of the allegations and characterizations contained in Paragraph 14 of the Complaint, and
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`therefore denies them.
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`15.
`
`Panasonic is without knowledge or information sufficient to form belief as to the
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`truth of the allegations and characterizations contained in Paragraph 15 of the Complaint, and
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`therefore denies them.
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`16.
`
`Panasonic is without knowledge or information sufficient to form belief as to the
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`truth of the allegations and characterizations contained in Paragraph 16 of the Complaint, and
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`therefore denies them.
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`17.
`
`18.
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`Panasonic denies the allegations in Paragraph 17 of the Complaint.
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`Panasonic denies the allegations in Paragraph 18 of the Complaint.
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`COUNT I
`(Infringement of the ’970 Patent)
`
`19.
`
`In response to Paragraph 19 of the Complaint, Panasonic reasserts and realleges its
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`responses to the allegations of Paragraphs 1-18 of the Complaint above, and incorporates them
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`herein by reference.
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`Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 6 of 14 PageID #: 955
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`20.
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`Panasonic admits AGIS has not licensed Panasonic to any of the Asserted AGIS
`
`Patents. Panasonic denies the remaining allegations and characterizations contained in Paragraph
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`20 of the Complaint.
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`21.
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`22.
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`23.
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`24.
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`25.
`
`26.
`
`27.
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`Panasonic denies the allegations in Paragraph 21 of the Complaint.
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`Panasonic denies the allegations in Paragraph 22 of the Complaint.
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`Panasonic denies the allegations in Paragraph 23 of the Complaint.
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`Panasonic denies the allegations in Paragraph 24 of the Complaint.
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`Panasonic denies the allegations in Paragraph 25 of the Complaint.
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`Panasonic denies the allegations in Paragraph 26 of the Complaint.
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`Panasonic denies the allegations in Paragraph 27 of the Complaint.
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`COUNT II
`(Infringement of the ’251 Patent)
`
`28.
`
`In response to Paragraph 28 of the Complaint, Panasonic reasserts and realleges its
`
`responses to the allegations of Paragraphs 1-27 of the Complaint above, and incorporates them
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`herein by reference.
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`29.
`
`Panasonic admits AGIS has not licensed Panasonic to any of the Asserted AGIS
`
`Patents. Panasonic denies the remaining allegations and characterizations contained in Paragraph
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`29 of the Complaint.
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`30.
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`31.
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`32.
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`33.
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`34.
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`35.
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`Panasonic denies the allegations in Paragraph 30 of the Complaint.
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`Panasonic denies the allegations in Paragraph 31 of the Complaint.
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`Panasonic denies the allegations in Paragraph 32 of the Complaint.
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`Panasonic denies the allegations in Paragraph 33 of the Complaint.
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`Panasonic denies the allegations in Paragraph 34 of the Complaint.
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`Panasonic denies the allegations in Paragraph 35 of the Complaint.
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`Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 7 of 14 PageID #: 956
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`36.
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`37.
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`38.
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`39.
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`40.
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`41.
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`Panasonic denies the allegations in Paragraph 36 of the Complaint.
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`Panasonic denies the allegations in Paragraph 37 of the Complaint.
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`Panasonic denies the allegations in Paragraph 38 of the Complaint.
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`Panasonic denies the allegations in Paragraph 39 of the Complaint.
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`Panasonic denies the allegations in Paragraph 40 of the Complaint.
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`Panasonic denies the allegations in Paragraph 41 of the Complaint.
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`COUNT III
`(Infringement of the ’838 Patent)
`
`42.
`
`In response to Paragraph 42 of the Complaint, Panasonic reasserts and realleges its
`
`responses to the allegations of Paragraphs 1-41 of the Complaint above, and incorporates them
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`herein by reference.
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`43.
`
`Panasonic admits AGIS has not licensed Panasonic to any of the Asserted AGIS
`
`Patents. Panasonic denies the remaining allegations and characterizations contained in Paragraph
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`43 of the Complaint.
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`44.
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`45.
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`46.
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`47.
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`48.
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`49.
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`50.
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`51.
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`52.
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`53.
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`Panasonic denies the allegations in Paragraph 44 of the Complaint.
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`Panasonic denies the allegations in Paragraph 45 of the Complaint.
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`Panasonic denies the allegations in Paragraph 46 of the Complaint.
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`Panasonic denies the allegations in Paragraph 47 of the Complaint.
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`Panasonic denies the allegations in Paragraph 48 of the Complaint.
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`Panasonic denies the allegations in Paragraph 49 of the Complaint.
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`Panasonic denies the allegations in Paragraph 50 of the Complaint.
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`Panasonic denies the allegations in Paragraph 51 of the Complaint.
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`Panasonic denies the allegations in Paragraph 52 of the Complaint.
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`Panasonic denies the allegations in Paragraph 53 of the Complaint.
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`Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 8 of 14 PageID #: 957
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`54.
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`55.
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`Panasonic denies the allegations in Paragraph 54 of the Complaint.
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`Panasonic denies the allegations in Paragraph 55 of the Complaint.
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`COUNT IV
`(Infringement of the ’829 Patent)
`
`56.
`
`In response to Paragraph 56 of the Complaint, Panasonic reasserts and realleges its
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`responses to the allegations of Paragraphs 1-55 of the Complaint above, and incorporates them
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`herein by reference.
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`57.
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`Panasonic admits Panasonic AGIS has not licensed Panasonic to any of the
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`Asserted AGIS Patents. Panasonic denies the remaining allegations and characterizations
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`contained in Paragraph 57 of the Complaint.
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`58.
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`59.
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`60.
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`61.
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`62.
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`63.
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`64.
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`65.
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`66.
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`67.
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`68.
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`69.
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`Panasonic denies the allegations in Paragraph 58 of the Complaint.
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`Panasonic denies the allegations in Paragraph 59 of the Complaint.
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`Panasonic denies the allegations in Paragraph 60 of the Complaint.
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`Panasonic denies the allegations in Paragraph 61 of the Complaint.
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`Panasonic denies the allegations in Paragraph 62 of the Complaint.
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`Panasonic denies the allegations in Paragraph 63 of the Complaint.
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`Panasonic denies the allegations in Paragraph 64 of the Complaint.
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`Panasonic denies the allegations in Paragraph 65 of the Complaint.
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`Panasonic denies the allegations in Paragraph 66 of the Complaint.
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`Panasonic denies the allegations in Paragraph 67 of the Complaint.
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`Panasonic denies the allegations in Paragraph 68 of the Complaint.
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`Panasonic denies the allegations in Paragraph 69 of the Complaint.
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`Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 9 of 14 PageID #: 958
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`COUNT V
`(Infringement of the ’123 Patent)
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`70.
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`In response to Paragraph 70 of the Complaint, Panasonic reasserts and realleges its
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`responses to the allegations of Paragraphs 1-69 of the Complaint above, and incorporates them
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`herein by reference.
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`71.
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`Panasonic admits AGIS has not licensed Panasonic to any of the Asserted AGIS
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`Patents. Panasonic denies the remaining allegations and characterizations contained in Paragraph
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`71 of the Complaint.
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`72.
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`73.
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`74.
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`75.
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`76.
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`77.
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`78.
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`79.
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`80.
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`81.
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`82.
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`83.
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`Panasonic denies the allegations in Paragraph 72 of the Complaint.
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`Panasonic denies the allegations in Paragraph 73 of the Complaint.
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`Panasonic denies the allegations in Paragraph 74 of the Complaint.
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`Panasonic denies the allegations in Paragraph 75 of the Complaint.
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`Panasonic denies the allegations in Paragraph 76 of the Complaint.
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`Panasonic denies the allegations in Paragraph 77 of the Complaint.
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`Panasonic denies the allegations in Paragraph 78 of the Complaint.
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`Panasonic denies the allegations in Paragraph 79 of the Complaint.
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`Panasonic denies the allegations in Paragraph 80 of the Complaint.
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`Panasonic denies the allegations in Paragraph 81 of the Complaint.
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`Panasonic denies the allegations in Paragraph 82 of the Complaint.
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`Panasonic denies the allegations in Paragraph 83 of the Complaint.
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`AFFIRMATIVE DEFENSES
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`1.
`
`Panasonic asserts the following additional and other defenses concerning the patent
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`claims on which AGIS accuses Panasonic, without assuming the burden of proof for any defense.
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`Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 10 of 14 PageID #: 959
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`To the extent that AGIS amends the Complaint and/or its contentions, Panasonic expressly
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`reserves its right to amend this Response.
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`FIRST AFFIRMATIVE DEFENSE – FAILURE TO STATE A CLAIM
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`2.
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`Plaintiff has failed to state a claim under 35 U.S.C. § 271, on which relief can be
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`granted.
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`SECOND AFFIRMATIVE DEFENSE – NON-INFRINGEMENT
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`3.
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`Panasonic does not directly infringe, indirectly infringe, contribute to infringement,
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`or induce infringement of any valid and enforceable claim of the Asserted Patents, either literally
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`or under the doctrine of equivalents, and has not otherwise committed any acts in violation of 35
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`U.S.C. § 271.
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`THIRD AFFIRMATIVE DEFENSE – INVALIDITY
`
`4.
`
`The Asserted Claims of the Asserted Patents are each invalid for failure to meet the
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`requirements set forth in 35 U.S.C. §§ 101, 102, 103, and/or 112.
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`5.
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`All Asserted Claims of the Asserted Patents are invalid under 35 U.S.C. § 102
`
`and/or § 103.
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`6.
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`All Asserted Patents are invalid for failure to meet the “Specification” requirements
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`of Title 35, United States Code, § 112 and do not conclude with one or more claims particularly
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`pointing out and distinctly claiming the subject matter which the applicant regards as the invention,
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`and no Asserted Claim of the Asserted Patents against Panasonic can be validly construed to cover
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`any Panasonic products.
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`FOURTH AFFIRMATIVE DEFENSE – PROSECUTION HISTORY ESTOPPEL
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`7.
`
`On information and belief, as a result of the proceedings before the United States
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`Patent and Trademark Office or other patent offices during the prosecution of the applications that
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`Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 11 of 14 PageID #: 960
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`led to the Asserted Patents, applications to which the Asserted Patents claim priority, or other
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`related applications, Plaintiff is estopped from interpreting the Asserted Patents to cover or include
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`any product made, used, sold, offered for sale, or imported by Panasonic.
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`FIFTH AFFIRMATIVE DEFENSE – EQUITABLE ESTOPPEL
`
`8.
`
`On information and belief, Plaintiff’s claims against Panasonic are barred by the
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`doctrine of equitable estoppel. Plaintiff was aware of the accused technologies but permitted
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`Panasonic to continue using them and did not assert Plaintiff’s patents against Panasonic. Upon
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`information and belief, Plaintiff performed these actions with the intention that Panasonic rely and
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`act upon them, and Panasonic did in fact so rely and act to its detriment.
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`SIXTH AFFIRMATIVE DEFENSE – LACK OF STANDING
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`9.
`
`To the extent that Plaintiff lacks all substantial rights to bring this lawsuit and to
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`exclude others from practicing the claims of one or more of the Asserted Patents, Plaintiff’s claims
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`are barred by a lack of standing.
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`10.
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`On information and belief, Plaintiff’s claims are barred because Plaintiff lacks
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`standing to assert one or more of the Asserted Patents to the extent some or all substantial rights
`
`in those patents belong to a person or entity other than Plaintiff, including without limitation
`
`through assignment or through development for or on behalf of another person or entity.
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`11.
`
`For example and without limitation, Christopher R. Rice is one of two named
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`alleged inventors listed on the faces of the ’838, ’251, ’829, and ’123 patents, along with Malcolm
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`J. Beyer. On information and belief, Mr. Rice worked at Microsoft Corporation (“Microsoft”) from
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`2005 to 2016, and was under an obligation to assign and did assign his inventions during this
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`period to Microsoft. While at Microsoft, Mr. Rice worked on location-based technologies such as,
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`for example, “networking systems” and “location determination cloud services.” Applications for
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`11
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`Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 12 of 14 PageID #: 961
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`the ’838, ’251, and ’829 patents were filed during this period. An application for the ’123 patent
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`was filed either during this period or shortly after he left Microsoft. Plaintiff filed applications for
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`the ’838, ’251, ’829, and ’123 patents allegedly disclosing (at least in part) AGIS’s location-based
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`technologies. On information and belief, Microsoft was working on its own location-based
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`technologies during this time, and Mr. Rice was working on those Microsoft technologies as part
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`of his employment with Microsoft.
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`12.
`
`On information and belief, Mr. Rice copied at least part of the subject matter
`
`claimed in the ’838, ’251, ’829 and ’123 patents from other Microsoft employees and/or conceived
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`at least part of the claimed inventions during his time at Microsoft and/or as part of his work for
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`Microsoft. Either way, Microsoft has an ownership interest in the ’838, ’251, ’829, and ’123
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`patents, and Plaintiff lacks all substantial rights in one or more of the Asserted Patents. Plaintiff
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`thus lacks standing to assert any such patents in this lawsuit.
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`SEVENTH AFFIRMATIVE DEFENSE – PATENT EXHAUSTION AND/OR LICENSE
`
`13.
`
`On information and belief, Plaintiff’s claims against Panasonic are barred as a result
`
`of patent exhaustion and/or license to the Asserted Patents.
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`14.
`
`Plaintiff has given multiple third parties licenses to certain location-sharing
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`systems, related software, components thereof, and products containing same, and its claims are
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`barred by virtue of those licenses to one or more of the Asserted Patents granted by Plaintiff to
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`Panasonic and/or one or more third parties authorized to supply components to Panasonic.
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`Panasonic, in its own capacity, and as a customer of those licensees, is entitled to import products
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`containing such components, including but not limited to any of the Accused Products, based on
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`such licenses.
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`12
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`Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 13 of 14 PageID #: 962
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`EIGHTH AFFIRMATIVE DEFENSE – EXCLUSION OF GOVERNMENT SALES
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`15.
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`Sales of the Accused Products to the U.S. Government are excluded from this
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`lawsuit because 28 U.S.C. § 1498 limits those claims to only be brought in the United States Court
`
`of Federal Claims.
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`PRAYER FOR RELIEF
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`
`
`
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`Panasonic denies that Plaintiff is entitled to any relief whatsoever.
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`DEMAND FOR JURY TRIAL
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`Panasonic demands a jury for all issues so triable.
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`DATED: January 30, 2024
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`Respectfully submitted,
`
`
`
`
`
`
`/s/ Trey Yarbrough
`Trey Yarbrough
`Bar No. 22133500
`YARBROUGH WILCOX, PLLC
`100 E. Ferguson St., Ste. 1015
`Tyler, TX 75702
`Telephone: 903.595.3111
`Facsimile: 903.595.0191
`trey@yw-lawfirm.com
`
`Michael J. Kasdan
`Joseph M. Casino
`WIGGIN AND DANA, LLP
`437 Madison Avenue, 35th Floor
`New York, NY 10022
`Telephone: 212.551-2603
`Facsimile: 212.551.2888
`
`Attorneys for Defendants,
`Panasonic Corporation and Panasonic
`Corporation of North America
`
`
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`
`
`13
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`Case 2:22-cv-00443-JRG Document 47 Filed 01/30/24 Page 14 of 14 PageID #: 963
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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 January 30, 2024.
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`/s/ Trey Yarbrough
`Trey Yarbrough
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`14
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`