Case 6:20-cv-00522-ADA Document 67 Filed 06/18/21 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`UNM RAINFOREST INNOVATIONS,
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`Plaintiff,
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`Civil Action No. 6:20-cv-00522-ADA
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`ZYXEL COMMUNICATIONS CORPORATION’S SUPPLEMENTAL
`BRIEFING IN SUPPORT OF ITS MOTION FOR RECONSIDERATION,
`CLARIFICATION, AND TO STAY PROCEEDINGS (Dkt. 54)
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`ZYXEL COMMUNICATIONS
`CORPORATION,
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`v.
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`Defendant.
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`Case 6:20-cv-00522-ADA Document 67 Filed 06/18/21 Page 2 of 13
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`TABLE OF CONTENTS
`INTRODUCTION ...............................................................................................................1 
`THE NEW MEXICO ACTION ...........................................................................................1 
`THIS CASE SHOULD BE DISMISSED BECAUSE UNMRI’S FILING OF THE
`NEW MEXICO ACTION SHOWS THAT UNMRI RECOGNIZES THAT
`OWNERSHIP OF THE ASSERTED PATENTS IS STILL AT ISSUE AND THAT
`IT DID NOT MEET ITS BURDEN IN THIS MATTER TO PROVE STANDING BY
`A PREPONDERANCE OF THE EVIDENCE. ...................................................................3 
`ALTERNATIVELY, A STAY PENDING RESOLUTION OF THE NEW MEXICO
`ACTION (INITIATED BY UNMRI TO DETERMINE OWNERSHIP OF THE
`ASSERTED PATENTS) IS WARRANTED UNDER THE SOVERAIN FACTORS. ......7 
`ALTERNATIVE TO BOTH THE DISMISSAL OF THIS ACTION AND A STAY,
`A REASONED OPINION EXPLAINING WHY ZYXEL’S APPLICATION OF
`LAW TO THE FACTS DOES NOT MERIT DISMISSAL WILL HELP TO
`ENSURE THAT SUBJECT-MATTER JURISDICTION EXISTS AND REDUCE
`UNCERTAINTY AS TO THE OWNERSHIP OF THE ASSERTED PATENTS. ............9 
`CONCLUSION ..................................................................................................................10 
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`I. 
`II. 
`III. 
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`IV. 
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`V. 
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`VI. 
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`i
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`Case 6:20-cv-00522-ADA Document 67 Filed 06/18/21 Page 3 of 13
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`I.
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`INTRODUCTION
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`Defendant ZyXEL Communications Corporation (“ZyXEL”) respectfully submits this
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`Supplemental Brief to notify the Court of a material case development relevant to ZyXEL’s
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`pending Motion for Reconsideration, Clarification, and to Stay Proceedings (the “Motion”) (Dkt.
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`54) in which ZyXEL moved this Court: (i) to reconsider the Text Order entered without opinion
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`on January 27, 2021 denying ZyXEL’s Motion to Dismiss for Lack of Standing (the “Motion to
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`Dismiss”) (Dkt. 18-1, 22) and grant the Motion to Dismiss; (ii) to, alternatively, clarify its Text
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`Order by providing a reasoned opinion explaining the Court’s basis for denying ZyXEL’s Motion
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`to Dismiss; and (iii) to immediately stay proceedings pending the Court’s ruling(s) on the Motion’s
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`requested relief.1
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`The material case development is that Plaintiff UNM Rainforest Innovations (“UNMRI”)
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`recently filed an action in the Second Judicial District Court of Bernalillo County, New Mexico
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`(the “New Mexico Action”), attempting to clear its title to, and establish its ownership of, the
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`patents asserted in this litigation (“Asserted Patents”).2 As UNMRI has finally acknowledged that
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`an “actual controversy exists” as to the ownership of the Asserted Patents, for the reasons stated
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`in the Motion’s papers and herein, the Motion to Dismiss should be granted or, alternatively, the
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`case should be stayed pending resolution of the New Mexico Action—an action which goes to the
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`heart of the issue of ownership of the Asserted Patents and UNMRI’s standing to sue.3
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`II.
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`THE NEW MEXICO ACTION
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`On May 4, 2021, UNMRI filed the New Mexico Action against Industrial Technology
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`Research Institute (“ITRI”), ITRI International Inc., and individual Peng-Yu Wang, styled UNM
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`1 In the Motion to Dismiss (filed on October 29, 2020), ZyXEL challenged both Article III and
`statutory standing, moving for dismissal under Rules 12(b)(1) and 12(h)(3) (and, alternatively,
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`1
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`Rainforest Innovations v. Industrial Technology Research Institute, et al., Case No. D-202-CV-
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`2021-02803, seeking among other things: (1) a declaratory judgment of ownership of the Asserted
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`Patents (Count I); and (2) to quiet title to the Asserted Patents (Count II). See Exhibit A-1 (New
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`Mexico Action Complaint). As in this litigation, UNMRI alleges in the New Mexico Action that
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`it acquired its interest in the Asserted Patents from Sino Matrix Technology, Inc. (“Sino Matrix”),
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`which in turn obtained its interest in the Asserted Patents from ITRI (the original owner of all
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`rights, titles, and interests in the Asserted Patents). Id., ¶¶ 26, 29, 32. Unlike this litigation,
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`however, UNMRI additionally alleges that ITRI and Sino Matrix executed in “secret” a sales
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`contract under which ITRI purports to have “reserve[d] ownership rights in the Asserted Patents”
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`(id., ¶ 54), creating a cloud of title and uncertainty of ownership of the Asserted Patents that has
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`“severely hindered and obstructed” UNMRI’s “attempt to license the patents to other [alleged]
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`infringers.” Id., ¶¶ 54, 61, 63–80. Tellingly, and finally, UNMRI also admits that an “actual
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`controversy exists” regarding ownership of the Asserted Patents.4 Id., ¶ 66.
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`under 12(b)(7) for failure to join indispensable parties). See Dkt. 34-1, 43, n.1 (“MTD Reply”).
`2 The Asserted Patents are United States Patent Nos. 8,249,204, 8,265,096, and 8,565,326.
`3 ZyXEL notes for the Court that Shore Chan LLP (“Shore Chan”), counsel for UNMRI in this
`case, was counsel for ITRI in prior infringement cases involving the Asserted Patents. Shore Chan
`is also UNMRI’s counsel of record in the New Mexico Action against ITRI.
`4 UNMRI’s allegation that the sales contract between ITRI and Sino Matrix (i.e., the Original
`Assignment) is “secret” is belied by the facts that: (1) the ownership-retention provisions of the
`Original Assignment are required by ITRI’s funding agency, the Taiwan Ministry of Economic
`Affairs, and ingrained in Taiwan’s publicly available regulations (see Motion to Dismiss, II
`(“Efforts to Protect Taiwanese Investment”)); and (2) UNMRI’s counsel, having represented ITRI
`in 19 U.S. patent cases since 2009, is intimately familiar with such ownership-retention provisions.
`See MTD Reply, n.7. Moreover, “[w]here a party is experienced in the business of acquiring and
`enforcing patents [as is UNMRI], it is especially appropriate to find that it had constructive
`knowledge of another’s potential rights in the patents.” Leighton Techs. LLC v. Oberthur Card
`Sys., No. 04 Civ. 2496(CM), 2007 WL 2230157, at *13 (S.D.N.Y. July 11, 2007). And through its
`due-diligence inquiry obligations, UNMRI should have learned of the Original Assignment simply
`by asking its predecessor-in-interest Sino Matrix whether it had executed any such document with
`ITRI. See MTD Reply, IV.B.
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`2
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`III. THIS CASE SHOULD BE DISMISSED BECAUSE UNMRI’S FILING OF THE
`NEW MEXICO ACTION SHOWS THAT UNMRI RECOGNIZES THAT
`OWNERSHIP OF THE ASSERTED PATENTS IS STILL AT ISSUE AND THAT
`IT DID NOT MEET ITS BURDEN IN THIS ACTION TO PROVE STANDING BY
`A PREPONDERANCE OF THE EVIDENCE.
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`Throughout its briefing in response to ZyXEL’s “factual attack” challenging the
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`sufficiency of UNMRI’s rights in the Asserted Patents—and accordingly its standing to bring
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`suit—UNMRI continually relied only on the allegations in its Complaint and attorney argument,
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`repeatedly imploring this Court to ignore ZyXEL’s evidence, cited law, and logic. UNMRI’s
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`argument to the Court, at its core, was “there is nothing here.” Now, contrary to this prior position,
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`UNMRI has chosen New Mexico as the hill on which to make its stand regarding it rights to the
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`Asserted Patents. UNMRI’s suit in New Mexico presents two important new facts that this Court
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`should consider. First, UNMRI acknowledges that it needs a legal declaration of its rights, i.e., its
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`standing, as it relates to the Asserted Patents. Second, UNMRI has chosen New Mexico rather than
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`this Court as the place to seek such declaration. Both facts demonstrate that UNMRI has not
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`proven standing in this action.5 Moreover, UNMRI’s attempt to seek “a declaration from [the New
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`Mexico state court] declaring [its] right and status” with respect to the Asserted Patents shows that
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`UNMRI is aware that, in the face of ZyXEL’s “factual attack,” UNMRI has failed to carry its
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`burden in this action to prove by a preponderance of the evidence its standing to pursue this
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`litigation.6 In filing the New Mexico Action, UNMRI seeks the well-reasoned declaration of rights
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`5 As ZyXEL explained in its prior briefing, once ZyXEL challenged subject-matter jurisdiction
`through a “factual attack,” UNMRI was “required to submit facts through some evidentiary method
`and ha[d] the burden of proving by a preponderance of the evidence that the trial court does have
`subject matter jurisdiction.” Diamondback Indus., Inc. v. Repeat Precision, LLC, No. 6:19-CV-
`00034-ADA, 2019 WL 8501017, at *2 (W.D. Tex. Sept. 11, 2019) (citing Paterson v. Weinberger,
`644 F.2d 521, 523 (5th Cir. 1981)); see also Motion to Dismiss, III.A; Motion, II.
`6 ZyXEL initiated a “factual attack” challenging UNMRI’s rights in the Asserted Patents based on
`two patent agreement documents executed by original patentee ITRI and UNMRI’s predecessor-
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`3
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`as to the Asserted Patents that UNMRI requested this Court not provide.7 UNMRI should not be
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`afforded this second bite. Once ZyXEL factually attacked UNMRI’s constitutional standing in this
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`case, it became UNMRI’s burden to prove in this case by a preponderance of evidence that it had
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`standing such that subject-matter jurisdiction exists. UNMRI failed to carry its burden—as
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`recognized by its filing the New Mexico Action. As this case cannot proceed without subject-
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`matter jurisdiction, the Court should reconsider its original Text Order and dismiss this case. To
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`that end, the applicable law here is clear:
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`The key focus for interpreting a patent agreement is the intention of the parties as it is
`expressed in that agreement. See United States v. Krasnov, 143 F. Supp. 184, 201 (E.D.
`Pa. 1956), aff'd, 355 U.S. 5 (1957) (“[P]atent assignments are subject to the same rules of
`construction that apply to contracts generally, the intention of the parties being of primary
`concern in construing them.”); Mustang Tractor & Equip. Co. v. Liberty Mut. Ins., 76 F.3d
`89, 91 (5th Cir. 1996) (holding under Texas law that “courts strive to effectuate the
`intentions of parties as they are expressed in a contract”); see also MTD Reply, II.
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`Unambiguous contracts will be enforced as written. Interstate Contr. Corp. v. City of
`Dallas, 407 F.3d 708, 712 (5th Cir. 2005) (“The court’s primary concern is to enforce the
`parties’ intent as contractually expressed, and an unambiguous contract will be enforced as
`written.”); see also MTD Reply, III.B (at 5).
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`A.
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`B.
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`C.
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`Signatures are required to modify a contract when intended by the parties. Huckaba v. Ref-
`Chem, L.P., 892 F.3d 686, 689 (5th Cir. 2018) (“Signatures are not required as long as the
`parties give their consent to the terms of the contract, and there is no evidence of an intent
`to require both signatures as a condition precedent to it becoming effective as a contract.”
`(emphasis added)); Andypolo LP v. Caravan Rug Corp., Civ. Action No. H–12–3556, 2014
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`in-interest Sino Matrix that were not acknowledged by UNMRI’s Complaint in this action
`(collectively referred to herein and throughout ZyXEL’s briefing as the “Original Assignment”).
`Once ZyXEL “factually attacked” UNMRI’s standing, UNMRI had the burden to prove its
`standing by a preponderance of the evidence and could not rely on any presumption of truthfulness
`for the allegations in its Complaint. Offering only unsubstantiated argument beyond the
`Complaint’s allegations (which are not sufficient for UNMRI to rebut a factual attack), UNMRI
`failed to carry its burden.
`7 In its response to the Motion, UNMRI discouraged this Court from providing a reasoned opinion
`explaining why the Court denied ZyXEL’s challenge to UNMRI’s ownership of the Asserted
`Patents. See Dkt. 57, II.B (section entitled “The Court is Not Required to Provide a Reasoned
`Opinion”). Ironically, UNMRI has helped to create “uncertainty as to the ownership of the
`Asserted Patents” by asking this Court not to provide the reasoned opinion that would help to
`clarify this issue.
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`4
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`WL 4273886, at *10–*11 (S.D. Tex. Aug. 28, 2014) (“The Purchase Agreement clearly
`required all parties to sign for a [sic] effective amendment or modification.”); MTD Reply,
`III.B (at 5).
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`D. As between transferor and transferee, filings with the U.S. PTO have no effect on the rights
`transferred between them. See United States v. Krasnov, 143 F. Supp. 184, 201 (E.D. Pa.
`1956), aff'd, 355 U.S. 5 (1957) (“As between the [same] parties, the statutory requirement
`of recording is of no consequence. Where there are no intermediary interests affected,
`recordation has no bearing on the results of a suit.” (emphasis added)); see also MTD
`Reply, III.B (at 6).
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`E.
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`Filing a transfer document with the U.S. PTO protects the filing transferee should the
`transferor subsequently transfer those same rights to a third party. Filtroil, N. Am., Inc. v.
`Maupin, Nos. 99-1361, 99-1387, 99-1418, 2000 WL 33544088, at *4 (Fed. Cir. Mar. 30,
`2000) (“The recording of an assignment of a patent with the [U.S. PTO] is a routine matter.
`It protects the applicant against claims by later assignees of the patent.” (emphases
`added)); see also MTD Reply, III.B (at 6).
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`F.
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`A party cannot convey more rights than it owns. Prima Tek II, L.L.C. v. A-Roo Co., 222
`F.3d 1372, 1382 (Fed. Cir. 2000) (“[A]n owner or licensee of a patent cannot convey that
`which it does not possess.”); see also MTD Reply, III.C.
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`A straight application of this law to the facts of this case yields that the Original Assignment
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`is the document governing the transfer of rights in the Asserted Patents, the USPTO filings are the
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`“notice filings” referenced in the Original Assignment, and UNMRI is simply a non-exclusive
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`licensee of the Asserted Patents without standing to bring suit.8 More specifically: (1) all (rather
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`than UNMRI’s cherry-picked few) of the documents are relevant to the transfer of patent
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`rights from ITRI to Sino Matrix—including the Original Assignment and, to a much lesser extent,
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`the U.S. PTO filings—and the “intentions of the parties” as expressed in those documents must be
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`determined (see A above; MTD Reply, II–III.); (2) the Original Assignment was executed first
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`8 “Original Assignment” refers to the October 31, 2017, thirteen-page Chinese language original
`patent agreement executed by ITRI and Sino Matrix consisting of a Technical Patent Assignment
`Contract and a Technical Patent Assignment Contract Supplemental Agreement. See, e.g., MTD
`Reply, III.A. The “U.S. PTO filings” (often referred to in ZyXEL’s briefing as the “Notice
`Filings”) are three one-page form notices executed by ITRI (one for each of the Asserted Patents)
`and filed with the U.S. PTO in March 2018. See Motion to Dismiss, Exhibit E.
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`5
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`(see supra note 8), was executed by both ITRI and Sino Matrix (id.), retains substantial rights for
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`ITRI and the Taiwan Ministry of Economic Affairs (see Motion to Dismiss, IV.A.), conveys only
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`a non-exclusive license to Sino Matrix (and therefore to successor-in-interest UNMRI) (id.; see F
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`above), is a “present” transfer of rights (see MTD Reply, III.A), takes precedence over any “notice
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`filing” (see MTD Reply, III.B.), and requires both ITRI and Sino Matrix to execute any modifying
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`document (id.; see B and C above); and (3) the U.S. PTO filings perform the “notice” function
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`discussed in the Original Assignment (see MTD Reply, III.B.) and were executed by only one
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`party to the Original Assignment—precluding them from being documents that can modify the
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`Original Assignment (which require execution by both ITRI and Sino Matrix) (id.)—and
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`recordation of the U.S. PTO filings with the U.S. PTO per se has “no bearing” on the rights
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`transferred by ITRI to Sino Matrix. Krasnov, 143 F. Supp. at 201 (see D above).
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`Notwithstanding UNMRI’s attempts to distort this straightforward reconciliation of the
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`relevant patent documents under the applicable Fifth Circuit and Federal Circuit law, third parties
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`looking at this lawsuit must see the logic of ZyXEL’s arguments, thus creating the “uncertainty of
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`ownership of the Asserted Patents” that has “hindered” UNMRI’s attempts to license the Asserted
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`Patents, as UNMRI itself has alleged in its complaint in the New Mexico Action. Even without the
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`detailed application of law and fact outlined above, the optics alone suggest that the thirteen-page
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`detailed Chinese language document executed by both Taiwanese parties governs over the three
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`one-page, English-language, unilaterally executed documents filed with the U.S. PTO, thereby
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`creating uncertainty as to the ownership of the Asserted Patents even on cursory review.
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`In view of the “uncertainty as to the ownership of the Asserted Patents” as now expressly
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`acknowledged by UNMRI in the New Mexico Action and the applicable law and facts of this case
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`as outlined above, the Court should reconsider its original Text Order and dismiss this case.
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`6
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`IV. ALTERNATIVELY, A STAY PENDING RESOLUTION OF THE NEW MEXICO
`ACTION (INITIATED BY UNMRI TO DETERMINE OWNERSHIP OF THE
`ASSERTED PATENTS) IS WARRANTED UNDER THE SOVERAIN FACTORS.
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`As stated in the Motion, even before UNMRI’s filing of the New Mexico Action, the
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`Soverain factors9 supported instituting a stay immediately (which now should remain pending
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`resolution of the New Mexico Action).10 Although dismissal of the action is warranted because
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`UNMRI’s initiation of the New Mexico Action is effectively a concession that UNMRI has not
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`carried its burden to establish standing in this action, alternatively, ZyXEL re-urges its request to
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`stay this action. A stay is further merited now in view of the two pending actions directed to
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`resolving the ownership of the Asserted Patents (i.e., the New Mexico Action and the Taiwan
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`Action11), as courts routinely stay patent infringement cases pending resolution of parallel lawsuits
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`determining patent ownership because resolving such foundational and threshold issues of
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`ownership (and, by extension, a patentee’s standing to sue) avoids the risk of a multiplicity of suits,
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`avoids resulting prejudice to the alleged infringer, and serves the interests of judicial economy.
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`9 District courts typically weigh three factors when deciding whether to grant a stay: “(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.” Soverain Software LLC v. Amazon, Inc., 356 F.
`Supp. 2d 660, 662 (E.D. Tex. 2005) (the “Soverain factors”).
`10 ZyXEL explained in its Motion: (1) a stay pending resolution of this motion will not unduly
`prejudice UNMRI because UNMRI does not compete with ZyXEL and because its attorneys
`assumed the risk of filing suit despite knowing from their extensive past representation of ITRI
`that ITRI likely still held substantial rights in the patents-in-suit (see Motion, III.C.1); (2) the issues
`of this case may be simplified should the Court grant ZyXEL’s Motion, as the case will either be
`dismissed or the Court can explain its perceived factual and/or legal deficiencies supporting the
`denial of ZyXEL’s Motion to Dismiss—the latter allowing ZyXEL to address and/or remedy any
`such perceived deficiencies (id., III.C.2) and (3) this case is still in its infancy. Id., III.C.3.
`11 The recently filed New Mexico Action is the second civil action filed seeking a declaratory
`judgment regarding the ownership of the Asserted Patents. As this Court is aware, ITRI filed a
`civil complaint on January 25, 2021 against Sino Matrix and UNMRI in Taiwan Hsinchu District
`Court seeking a declaratory judgment that it is the owner of all rights in the Asserted Patents (the
`“Taiwan Action”). See Dkt. 51 (Defendant’s Request for Judicial Notice), Ex. A.
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`7
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`RMail Ltd. v. Amazon.com, Inc., No. 2:10-CV-258, 2014 WL 11394910, at *5–*7 (E.D. Tex. Jan.
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`30, 2014) (staying case four days prior to jury selection based on pending state court ownership
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`challenge because (1) parallel ownership dispute would simplify if not entirely moot the action;
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`(2) plaintiffs were not unduly prejudiced or tactically disadvantaged because they “clearly knew
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`of the serious implications those cases would have on the issue of patent ownership in the present
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`actions”; and (3) defendants were unduly prejudiced due to risk of “multiple suits should Plaintiffs
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`not be found to be the rightful patent owner”); see also RPost Holdings, Inc. v. Exacttarget, Inc.,
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`No. 2:12-CV-512-MHS-RSP, 2014 WL 12703780, at *2–*3 (E.D. Tex. Sept. 29, 2014) (same).
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`Further, the Federal Circuit has confirmed that staying a patent litigation pending a state court
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`action addressing the ownership of the asserted patents is proper. See Profile Mfg. v. Kress, 22
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`F.3d 1106, 1994 WL 108059, at *2–*4 (Fed. Cir. 1994) (unpublished).
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`Here, a stay is justified because it will undeniably streamline a threshold and fundamental
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`jurisdictional issue regarding the ownership of Asserted Patents, the existence of such issue which
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`has now been expressly acknowledged by UNMRI in the New Mexico Action. Further, ZyXEL
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`faces the risk of significant undue prejudice, including repeated suits and wasted resources
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`defending a case that UNMRI may ultimately have no standing to pursue. And these prudential
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`considerations strongly favor staying this case, particularly as there is no countervailing prejudice
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`to UNMRI. Indeed, UNMRI itself elected to initiate the New Mexico Action, and even if UNMRI
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`ultimately prevails in that action, UNMRI can seek to recover damages in this action for any
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`alleged infringement during the period of the stay. Finally, although trial has been scheduled, it is
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`nearly ten months away (i.e., April 4, 2022) (Dkt. 52), and the parties are still in the very early
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`stages of the litigation as fact discovery has only recently opened. To date, no substantive
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`depositions have taken place; expert discovery has yet to begin; source code review has not
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`8
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`commenced; and no dispositive motions have been filed. Under these circumstances, the Sovereign
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`factors strongly favor staying the case pending resolution of (at least) the New Mexico Action.12
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`See Rmail Ltd., 2014 WL 11394910, at *6; RPost Holdings, Inc., 2014 WL 12703780, at *3.
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`V.
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`ALTERNATIVE TO BOTH THE DISMISSAL OF THIS ACTION AND A STAY, A
`REASONED OPINION EXPLAINING WHY ZYXEL’S APPLICATION OF LAW
`TO THE FACTS DOES NOT MERIT DISMISSAL WILL HELP TO ENSURE
`THAT SUBJECT-MATTER
`JURISDICTION EXISTS AND REDUCE
`UNCERTAINTY AS TO THE OWNERSHIP OF THE ASSERTED PATENTS.
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`Given the existing “uncertainty as to the ownership of the Asserted Patents,” as now
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`expressly acknowledged by UNMRI through the filing of the New Mexico Action, should the
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`Court on reconsideration decline either to dismiss the case or to stay the case pending resolution
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`of the New Mexico Action, ZyXEL respectfully re-urges its request in its Motion that the Court
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`provide a reasoned opinion explaining the perceived deficiencies in fact and/or law in ZyXEL’s
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`standing arguments—the perceived deficiencies that support the Court’s denial of ZyXEL’s
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`Motion to Dismiss. The issuance of such reasoned opinion will not only allow ZyXEL to address
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`such deficiencies to ensure whether subject-matter jurisdiction exists in this case—which it does
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`not—but will also provide guidance to the potential licensees of the Asserted Patents regarding the
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`“uncertainty as to the ownership of the Asserted Patents” that has hindered UNMRI’s licensing
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`efforts. In short, there is no downside to the issuance of a reasoned opinion. And as recognized by
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`the Supreme Court, “there are occasions when an explanation of the reasons for a decision may be
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`required by the demands of due process,” such as whether standing exists to convey a court with
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`12 A stay is further warranted because IPRs involving the Asserted Patents have been filed with
`the U.S. PTO. Significantly, whether the Asserted Patents are patentable over the prior art at issue
`in the IPRs is not impacted by which entity (ITRI or UNMRI) is determined to be the owner of the
`Asserted Patents. Moreover, the fact that ZyXEL (and any other defendant against which the
`Asserted Patents have been asserted) seeks to invalidate the Asserted Patents regardless of the
`owner of the patents refutes UNMRI’s conspiracy theories regarding ITRI and such defendants.
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`9
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`the power to adjudicate the subject claims, as is the case here. Harris v. Rivera, 454 U.S. 339, 344
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`(1981); see also Fisher v. Univ. of Tex., 758 F.3d 633, 639 (5th Cir. 2014) (standing is part of
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`subject-matter jurisdiction, which cannot be waived, may be raised at any time, and without which
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`a court has no power to adjudicate claims).
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`VI. CONCLUSION
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`For the reasons above and in the other filings underlying the Motion and Motion to
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`Dismiss, ZyXEL requests the Court grant its Motion and either (1) reconsider the Motion to
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`Dismiss and dismiss the instant action, (2) stay the action pending the resolution of the New
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`Mexico Action, or (3) issue a reasoned opinion explaining its Text Order denying the Motion to
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`Dismiss. ZyXEL further requests any other relief to which it has shown itself entitled.
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`Case 6:20-cv-00522-ADA Document 67 Filed 06/18/21 Page 13 of 13
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`Dated: June 18, 2021
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`Respectfully submitted,
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`By: /s/ Mark D. Strachan
`Mark D. Strachan (Texas Bar No. 19351500)
`mstrachan@bradley.com
`(Lead Attorney)
`David C. Miller (Texas Bar No. 24110114)
`dmiller@bradley.com
`BRADLEY ARANT BOULT
`CUMMINGS LLP
`1201 Elm Street, Ste. 4400
`Dallas, Texas 75270
`Tel: (214) 939-8700; Fax: (214) 939-8787
`
`Christine Yang
`California Bar No. 102048
`chrisyang@sjclawpc.com
`Victoria Hao
`D.C. Bar No. 489885
`vhao@sjclawpc.com
`LAW OFFICES OF S.J. CHRISTINE YANG
`17220 Newhope Street, Suite 101
`Fountain Valley, California 92708
`Tel: (714) 641-4022; Fax: (714) 641-2082
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`ATTORNEYS FOR DEFENDANT ZYXEL
`COMMUNICATIONS CORPORATION
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`CERTIFICATE OF SERVICE
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`I hereby certify that on June 18, 2021, I caused the foregoing to be electronically filed with
`the Clerk of Court using CM/ECF, which will send notification of such filing to all registered
`participants.
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`/s/ Mark D. Strachan__________
`Mark D. Strachan
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