Case 2:22-cv-00446-JRG Document 11 Filed 01/14/23 Page 1 of 4 PageID #: 56
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AGIS SOFTWARE DEVELOPMENT LLC,
`Plaintiff,
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`v.
`ONEPLUS TECHNOLOGY (SHENZHEN)
`CO., LTD.,
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`Case No. 2:22-cv-00446
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`Defendant.
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`DEFENDANT ONEPLUS TECHNOLOGY (SHENZHEN) CO., LTD.’S
`UNOPPOSED MOTION TO STAY ACTION PENDING ITC DETERMINATION
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`Defendant OnePlus Technology (Shenzhen) Co., Ltd. (“OnePlus”) respectfully moves
`this Court to stay all deadlines in the above-captioned case until the determination of the U.S.
`International Trade Commission (“ITC”) Matter becomes final, pursuant to 28 U.S.C. § 1659(a),
`including during any appeals and until the Commission proceedings are no longer subject to
`judicial review. The parties have met and conferred, and Plaintiff AGIS Software Development
`LLC (“AGIS Software”) does not oppose this motion.
` On November 18, 2022, AGIS Software filed a complaint against OnePlus in this action
`(“the Texas action”) alleging infringement of U.S. Patent Nos. 8,213,970, 9,445,251, 9,467,838,
`9,749,829, and 9,820,123. On November 16, 2022, AGIS Software filed a complaint in the ITC
`asserting the same patents against OnePlus and other proposed respondents. On December 22,
`2022, the U.S. International Trade Commission (“ITC”) instituted the matter titled, In the Matter
`of Certain Location-Sharing Systems, Related Software, Components Thereof, and Products
`Containing Same, Investigation No. 337-TA-1347 (“the ITC Matter”), currently before the ITC
`under section 337 of the Tariff Act of 1930.
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`Case 2:22-cv-00446-JRG Document 11 Filed 01/14/23 Page 2 of 4 PageID #: 57
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`Pursuant to 28 U.S.C. § 1659, district court patent claims that involve the same issues as
`a parallel ITC proceeding are subject to a mandatory stay. Specifically, 28 U.S.C. § 1659(a)
`provides:
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`(a) Stay. In a civil action involving parties that are also parties to a proceeding before the
`United States International Trade Commission under section 337 of the Tariff Act of
`1930, at the request of a party to the civil action that is also a respondent in the
`proceeding before the 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 involved in the proceeding before the Commission, but only
`if such request is made within
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`(1) 30 days after the party is named as a respondent in the proceeding before the
`Commission, or
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`(2) 30 days after the district court action is filed, whichever is later.
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`Id.
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`A stay issued under this statute remains in effect during any appeals and “until the
`Commission proceedings are no longer subject to judicial review.” In re Princo Corp., 478 F.3d
`1345, 1355 (Fed. Cir. 2007). Here, because the patents asserted in this action also are asserted
`against OnePlus in the ITC Matter, and because the parties and the accused products are also the
`same, a stay of this case as to OnePlus is mandatory upon its timely request. The mandatory stay
`of Section 1659 applies where a request is made: (1) 30 days after the party is named as a
`respondent in the proceeding before the Commission; or (2) 30 days after the district court action
`is filed, whichever is later. OnePlus’s request is made within 30 days after OnePlus was named
`as a respondent in the proceeding before the Commission, which means it is timely under Section
`1659(a)(1).
`For the foregoing reasons, OnePlus respectfully requests that the Court enter the attached
`proposed order, and suspend all deadlines and stay all proceedings as to OnePlus in the Texas
`action until the determination of the ITC Matter becomes final, including during any appeals and
`until the Commission proceedings are no longer subject to judicial review.
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`Case 2:22-cv-00446-JRG Document 11 Filed 01/14/23 Page 3 of 4 PageID #: 58
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`OnePlus appears specially to make this motion because AGIS has not yet served process
`on OnePlus.
`OnePlus’s special appearance does not waive any of its objections and defenses to
`AGIS’s Complaint, including, but not limited to, any defenses based on lack of jurisdiction,
`improper venue, inconvenient venue, insufficiency of process, and insufficiency of service of
`process and does not waive OnePlus’s rights to seek appropriate relief, including dismissal of the
`Complaint or venue transfer. See, e.g., Mann v. Castiel, 681 F.3d 368, 373-74 (D.C. Cir. 2012)
`(holding that a motion to stay does not waive an objection to sufficiency of service of process);
`Lane v. XYZ Venture Partners, L.L.C., 322 F.App’x 675, 678 (11th Cir. 2009) (holding that
`defendants “did not waive their defense of lack of personal jurisdiction by moving to stay the
`proceedings”). Thus, OnePlus expressly reserves all objections, defenses, and rights in response
`to AGIS’s Complaint allegations. Requesting a stay at this juncture without resolution of such
`objections and defenses will conserve judicial resources consistent with FRCP 1.
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`Dated: January 14, 2023
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`Respectfully submitted,
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`By: /s/ Theodore J. Angelis
`Theodore J. Angelis
`WA Bar No. 30300
`K&L GATES LLP
`925 4th Ave, Suite 2900
`Seattle, WA 98104
`206.623.7580
`theo.angelis@klgates.com
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`Darlene F. Ghavimi
`TX Bar No. 24072114
`K&L GATES LLP
`2801 Via Fortuna, Suite 650
`Austin, Texas 78746
`512.482.6800
`darlene.ghavimi@klgates.com
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`Case 2:22-cv-00446-JRG Document 11 Filed 01/14/23 Page 4 of 4 PageID #: 59
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`CERTIFICATE OF SERVICE
`The undersigned attorney certifies that on January 14, 2023, he caused the foregoing
`document to be electronically filed with the Clerk of the U.S. District Court, using the Court’s
`CM/ECF system, which will send electronic notification to all parties who have appeared and are
`registered as CM/ECF participants in this matter. Parties may access this filing through the
`Court’s CM/ECF system.
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`/s/ Theodore J. Angelis
`Theodore J. Angelis
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`CERTIFICATE OF CONFERENCE
`The undersigned attorney certifies that counsel for Defendants met and conferred with
`counsel for Plaintiffs. Counsel for Plaintiffs indicated that it is unopposed to this motion.
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`/s/ Theodore J. Angelis
`Theodore J. Angelis
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