Case 6:14-cv-00982-KNM Document 69 Filed 06/11/15 Page 1 of 6 PageID #: 409
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`Civil Action No. 6:14-cv-982
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`JURY TRIAL DEMANDED
`(Consolidated Lead Case)
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`Civil Action No. 6:14-cv-983
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`JURY TRIAL DEMANDED
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`Civil Action No. 6:15-cv-049
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`JURY TRIAL DEMANDED
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`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC,
`Plaintiff,
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`v.
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`LG ELECTRONICS, INC., et al.,
`Defendants.
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`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC,
`Plaintiff,
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`v.
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`SONY MOBILE COMMUNICATIONS
`INC., et al.,
`Defendants.
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`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC,
`Plaintiff,
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`v.
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`KYOCERA CORPORATION, et al.,
`Defendants.
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`PLAINTIFF CELLULAR COMMUNICATIONS EQUIPMENT LLC’S
`SURREPLY IN OPPOSITION TO DEFENDANTS’ JOINT MOTION TO DISMISS
`PLAINTIFF’S CONTRIBUTORY INFRINGEMENT CLAIMS
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`Case 6:14-cv-00982-KNM Document 69 Filed 06/11/15 Page 2 of 6 PageID #: 410
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`Short on substantive arguments, Defendants lead with a “gotcha” point, farcically
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`alleging that CCE conceded the insufficiency of certain contributory infringement claims by
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`identifying exemplary, rather than exhaustive, citations to applicable complaint paragraphs. This
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`exemplifies the gamesmanship underlying Defendants’ motion.
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`CCE has conceded nothing. Its Response expressly defends all of the contributory
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`infringement allegations, pointing out that the Amended Complaints1 adequately plead
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`combinations (plural — referring to each subject patent) and identify particular hardware
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`components and software functionality material to the subject inventions (again, plural). See
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`Response at 1, 4. Moreover, the citations applicable to the ’966 patent are plainly illustrative,
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`not limiting. See, e.g., Response at 4 (“With respect to the ’966 patent, for instance, CCE notes .
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`. .”) (emphasis added). Such exemplary citations are proper because CCE’s arguments apply
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`identically to its allegations under the ’966 and ’060 patents.2
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`CCE’s Response demonstrates that, for each accused combination (in both the ’060 and
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`’966 patents), there is no substantial non-infringing use and the applicable component(s) is (are)
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`a material part of each invention. Defendants allege that, because the same hardware
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`components (baseband processor and related components) are accused in the infringements of
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`the ’966 and ’060 patent claims, there must necessarily be substantial non-infringing uses. But
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`such a contention falsely premised. CCE’s allegations are not so nonspecific. Rather, CCE
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`alleges infringement by particular combinations of (1) hardware and (2) specially-programmed
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`1 As with its Response, CCE cites to the current complaint in Case No. 6:14-cv-982, Dkt. No. 28,
`as exemplary. Each of the complaints at issue contains allegations that are substantively the
`same.
`2 CCE’s Response discusses paragraphs 27 and 28 of its representative complaint relative to the
`’966 patent. Substantively identical paragraphs discussing the ’060 patent are found at
`paragraphs 55 and 56.
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`1
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`Case 6:14-cv-00982-KNM Document 69 Filed 06/11/15 Page 3 of 6 PageID #: 411
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`software. Defendants simply ignore the fact that the identified software instructions are,
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`themselves, actual component structure.
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`Instead, Defendants argue that software instructions are transient and applicable “only at
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`the time the software is instructing the [hardware] component to perform a specific task.” Reply
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`at 2. While it is true that infringement of a method step occurs when the method is performed,
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`CCE’s allegations are unlike those in Bill of Lading. In that case, the Federal Circuit held the
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`plaintiff’s allegations deficient because the accused system, in its entirety, could be used for
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`purposes other than infringement — in other words, the accused system had no structure specific
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`to the performance of the claimed process. See In re Bill of Lading Transmission and Processing
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`System Patent Lit., 681 F.3d 1323, 1338 (Fed. Cir. 2012). In this case, the specifically-identified
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`hardware and software combinations have no functionality or purpose other than commission of
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`the claimed process. See id. (citing Ricoh Co v. Quanta Computer Inc., 550 F.3d 1325, 1336,
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`1340 (Fed. Cir. 2008) and noting that, in Ricoh, the court held that “summary judgment of no
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`contributory infringement could not be granted in favor of an optical disc drive manufacturer
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`because, although its drives were capable of writing data by either an infringing method or a
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`non-infringing method, the drives contained ‘at least some distinct and separate components used
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`only to perform the allegedly infringing write methods.’”).
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`Defendants’ argument regarding U.S. Ethernet Innovations is equally unavailing. To this
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`end, they argue that CCE is running away from allegations of induced infringement. This is not
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`the case. The induced infringement allegations identify instructional materials (e.g., accused
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`phone user manuals) that precipitate infringement by teaching users to operate accused devices
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`in infringing ways. The gravamen of Defendants’ position seems to be that such instructional
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`2
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`Case 6:14-cv-00982-KNM Document 69 Filed 06/11/15 Page 4 of 6 PageID #: 412
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`materials are directed to the accused devices as a whole, and not to any discrete component
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`combination.
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`Of course, CCE does not deny that the phone, itself, has non-infringing uses. But
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`Defendants’ contributory infringements involve specific component combinations that have no
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`other purpose than to perform infringing functions. Device components (as opposed to the
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`device, as a whole) can properly substantiate a contributory infringement case. See, e.g., Tierra
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`Intellectual Borinquen, Inc. v. Asus Computer Int’l, Inc., Case No. 2:13-cv-44, Dkt. 36 at 3-4
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`(E.D. Tex. Mar. 24, 2014) (“TIB has accused, not the entire Pantech Flex mobile phone, which
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`no doubt does have substantial noninfringing uses, but rather its ‘authentication methods,’ which
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`it alleges are a material part of the invention with no substantial noninfringing use… The Court
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`finds that TIB’s allegations as pled are sufficient.”) (internal citations omitted).
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`Finally, Defendants incorrectly allege that Judge Davis has already rejected portions of
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`CCE’s Amended Complaints that address that the accused components. But the Amended
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`Complaints now identify specific hardware components by name and more precisely characterize
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`the software involved in the accused combinations. See, e.g., Response at 4. These additions to
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`the Amended Complaints assuage Judge Davis’ concern that prior complaints did not “identify
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`any components of the accused devices that are a material part of the invention.” See Cellular
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`Communications Equipment LLC v. HTC Corp., et al. (“CCE Wave I”), Case No. 6:13-cv-507,
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`Dkt. No. 373 at 10.
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`Because CCE’s contributory infringement allegations are proper, CCE asks that the Court
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`deny Defendants’ motion to dismiss and order that they formally answer.
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`3
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`Case 6:14-cv-00982-KNM Document 69 Filed 06/11/15 Page 5 of 6 PageID #: 413
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`Dated: June 11, 2015
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`Respectfully submitted,
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`/s/ Edward R. Nelson III
`Edward R. Nelson III
`ed@nelbum.com
`Texas State Bar No. 00797142
`S. Brannon Latimer
`Brannon@nelbum.com
`Texas State Bar No. 24060137
`Thomas C. Cecil
`tom@nelbum.com
`Texas State Bar No. 24069489
`NELSON BUMGARDNER PC
`3131 West 7th Street, Suite 300
`Fort Worth, Texas 76107
`Phone: (817) 377-9111
`Fax: (817) 377-3485
`
`T. John Ward, Jr.
`Texas State Bar No. 00794818
`J. Wesley Hill
`Texas State Bar No. 24032294
`Claire Abernathy Henry
`Texas State Bar No. 24053063
`WARD & SMITH LAW FIRM
`P.O. Box 1231
`1127 Judson Rd. Ste. 220
`Longview, Texas 75606-1231
`(903) 757-6400
`(903) 757-2323 (fax)
`jw@jwfirm.com
`wh@wsfirm.com
`claire@wsfirm.com
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`ATTORNEYS FOR PLAINTIFF
`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC
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`4
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`Case 6:14-cv-00982-KNM Document 69 Filed 06/11/15 Page 6 of 6 PageID #: 414
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document was filed
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`electronically in compliance with Local Rule CV-5 on this 11th day of June, 2015. As of this
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`date, all counsel of record that has consented to electronic service and are being served with a
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`copy of this document through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A).
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`/s/ Edward R. Nelson, III
`Edward R. Nelson, III
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`5
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