Case 6:21-cv-00165-ADA Document 48 Filed 12/03/21 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`CPC PATENT TECHNOLOGIES PTY LTD.,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
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`) Case No. 6:21-cv-00165-ADA
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`) JURY TRIAL DEMANDED
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`PLAINTIFF CPC PATENT TECHNOLOGIES PTY LTD.’S
`OPPOSITION TO DEFENDANT APPLE INC.’S MOTION
`TO DISMISS FOR LACK OF STANDING
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`Case 6:21-cv-00165-ADA Document 48 Filed 12/03/21 Page 2 of 5
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`This is the third motion that defendant, Apple, Inc. (“Apple”) has filed in an effort to
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`forestall the instant litigation. This time, the basis is a purported lack of standing on the part of
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`CPC to bring the subject patent claims. There is no dispute between the parties as to the applicable
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`legal standard – to have standing, CPC must have a valid ownership interest in the Asserted
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`Patents1 at the time the complaint was filed resulting from valid assignments from CPC’s
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`predecessors-in-interest. See Dkt. No. 45 (“Apple. Motion”) at 8-9. Put another way, Apple does
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`not dispute the proposition that, if CPC acquired the Asserted Patents as a result of a series of valid
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`assignments, it would have standing in this matter.
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`In support of its motion, Apple cites to a November 2017 assignment of the patents in suit
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`from Securicom NSW Pty Ltd. (“Securicom”) to CJ Burke Nominees (“CJ Burke”) that antedates
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`a July 2019 assignment2 of such patents from Securicom to plaintiff, CPC Patent Technologies Pty
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`Ltd. (“CPC”). See Dkt. No. 45 at 9. According to Apple, while the December 2019 agreement
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`purported to “rescind” the November 2017 agreement, it did not do so ab initio. See id. Thus, at
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`most, the December 2019 agreement returned ownership of the Asserted Patents to Securicom with
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`no effective transfer thereafter from Securicom to CPC. See id.
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`CPC disagrees with Apple’s characterization of the December 2019 agreement as being
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`ineffective to void the November 2017 transfer ab initio.3 However, the Court need not reach that
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`issue to resolve the instant motion, as CPC and Securicom executed an agreement in January 2020
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`1 The Asserted Patents are U.S. Patent Nos. 8,620,039 (“the ’039 patent”), 9,269,208 (“the ’208
`patent”), and 9,665,705 (“the ’705 patent”).
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` Steven Cole Declaration, Ex. A-1 (“July 2019 Deed”).
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` The parties’ dispute as to whether CPC acquired ownership of the patents in suit in July 2019
`will, at most, affect the damage calculus in this matter. Because CPC acquired ownership of the
`patents in suit by the time the complaint was filed as a result of a document that Apple failed to
`discuss in its motion, CPC had standing as of that time.
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`1
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`Case 6:21-cv-00165-ADA Document 48 Filed 12/03/21 Page 3 of 5
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`providing that, inter alia, Securicom assigned rights in the Asserted Patents as of that date “to the
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`extent that any rights are not effectively assigned” through the July 2019 agreement. Steven Cole
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`Declaration, Ex. A-2 (“January 2020 Deed”), Operative Provisions, ¶ 2. Apple has called upon
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`the Court to rule on the issue of standing, which, as Apple itself acknowledges, merely “requires
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`legal ownership at the time of the alleged infringement.” Dkt. No. 45 at 8. There is no requirement
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`that the Court resolve the question of how much in advance of the complaint’s filing such
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`ownership existed.
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`CPC has now filed the subject assignment(s) with the United States Patent and Trademark
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`Office. Ex. B-1–B-3 (Screenshots of USPTO Websites). This filing, as the authority cited by
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`Apple acknowledges, “creates a presumption of validity as to the assignment and places the burden
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`to rebut such a showing on one challenging the assignment.” See Dkt. No. 45 at 11, citing SiRF
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`Tech., Inc. v. International Trade Commission, 601 F.3d 1319, 1327-28 (Fed. Cir. 2010). Of
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`course, Apple did not address this assignment at all.
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`Apple may complain that it was unaware of the January 2020 assignment in making this
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`motion. However, before filing the instant motion, Apple could have awaited CPC’s responses to
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`general discovery, which undoubtedly would have included documents regarding CPC’s
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`ownership of the patents in suit, including the January 2020 assignment. That Apple determined
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`to pull the trigger on the instant motion before receiving that discovery is a problem of Apple’s
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`own making, and does not relieve Apple of its obligation to rebut the presumption of assignment
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`validity. See SiRF Tech., I601 F.3d at 1327-28.
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`In any event, CPC has presented evidence that it had ownership in the Asserted Patents
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`required for standing, and the instant motion should be dismissed.
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`Case 6:21-cv-00165-ADA Document 48 Filed 12/03/21 Page 4 of 5
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`Date: December 3, 2021
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` Respectfully submitted,
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` /s/ James A. Shimota
`James A. Shimota
`(admitted pro hac vice)
`Illinois State Bar No. 6270603
`George C. Summerfield
`(admitted pro hac vice)
`Michigan State Bar No. P40644
`K&L GATES LLP
`70 W. Madison Street, Suite #3300
`Chicago, IL 60602
`Tel.: (312) 807-4299
`Fax: (312) 827-8000
`Jim.Shimota@klgates.com
`George.Summerfield@klgates.com
`
`Stewart Mesher
`Texas State Bar No. 24032738
`K&L GATES LLP
`2801 Via Fortuna, Suite #350
`Austin, TX 78746
`Tel.: (512) 482-6841
`Fax: (512) 482-6859
`Stewart.Mesher@klgates.com
`
`Elizabeth A. Gilman
`Texas State Bar No. 24069265
`K&L GATES LLP
`1000 Main Street, Suite #2550
`Houston, Texas 77002
`Tel.: (713) 815-7327
`Fax: (713) 815-7301
`Beth.Gilman@klgates.com
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`ATTORNEYS FOR CPC PATENT
`TECHNOLOGIES PTY LTD.
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`3
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`Case 6:21-cv-00165-ADA Document 48 Filed 12/03/21 Page 5 of 5
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`CERTIFICATE OF SERVICE
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`I hereby certify that on December 3, 2021, I electronically filed the foregoing with the
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`Clerk of the Court using the CM/ECF system, which will send notification of such filing to all
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`counsel of record.
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`/s/ James A. Shimota
`James A. Shimota
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`4
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