Case 6:22-cv-00533-ADA Document 65 Filed 01/18/23 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`DODOTS LICENSING SOLUTIONS LLC,
`
`Plaintiff,
`
`v.
`
`APPLE INC., BEST BUY STORES,
`L.P., BESTBUY.COM, LLC, AND
`BEST BUY TEXAS.COM, LLC,
`
`Defendants.
`
`Case No. 6:22-cv-00533-ADA-DTG
`
`DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO SEVER AND STAY
`CLAIMS AGAINST BEST BUY UNDER THE CUSTOMER-SUIT EXCEPTION
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`Case 6:22-cv-00533-ADA Document 65 Filed 01/18/23 Page 2 of 13
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`TABLE OF CONTENTS
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`Page
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`I.
`II.
`
`III.
`
`INTRODUCTION ............................................................................................................. 1
`ARGUMENT ..................................................................................................................... 2
`A.
`The Customer-Suit Exception Factors Favor Severing And Staying The
`Claims Against Best Buy. ...................................................................................... 2
`1.
`The Three Customer-Suit Exception Factors Apply To Best Buy. ........... 2
`2.
`The Dell Decision Does Not Foreclose The Application Of The
`Customer-Suit Exception Here. ................................................................. 4
`UroPep And Broadcom Do Not Foreclose The Application Of The
`Customer-Suit Exception Here. ................................................................. 5
`The Traditional Stay Factors Favor Severing And Staying DoDots’ Claims
`Against Best Buy. .................................................................................................. 8
`CONCLUSION .................................................................................................................. 9
`
`B.
`
`3.
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`Case 6:22-cv-00533-ADA Document 65 Filed 01/18/23 Page 3 of 13
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Blue Gentian, LLC v. Telebrands Corp.,
`2014 U.S. Dist. LEXIS 194568 (D.N.J. July 14, 2014) .............................................................5
`
`Blue Gentian, LLC v. Telebrands Corp.,
`2014 U.S. Dist. LEXIS 194573 (D.N.J. Apr. 30, 2014) ............................................................5
`
`Blue Gentian, LLC v. Telebrands Corp.,
`No. 1:13-cv-04627 (D.N.J. Oct. 2, 2014), ECF No. 115 ...........................................................5
`
`Cal. Inst. Of Tech. v. Broadcom Ltd.,
`2019 U.S. Dist. LEXIS 231027 (C.D. Cal. 2019) ..............................................................5, 7, 8
`
`Cal. Inst. of Tech. v. Broadcom Ltd.,
`25 F.4th 976 (Fed. Cir. 2022) ....................................................................................................8
`
`In re Dell In.,
`600 Fed. Appx. 728 (Fed. Cir. 2015) .............................................................................1, 2, 4, 5
`
`Erfindergemeinschaft UroPep GbR v. Eli Lilly & Co.,
`No. 2:15-CV-1202-WCB, 2016 U.S. Dist. LEXIS 55205 (E.D. Tex. Apr. 26,
`2016) ................................................................................................................................ passim
`
`Flygrip, Inc. v. Walmart Inc.,
`No. 6:21-CV-01082-ADA, 2022 WL 2373714 (W.D. Tex. June 29, 2022) .........................4, 8
`
`Glenayre Elecs., Inc. v. Jackson,
`443 F.3d 851 (Fed. Cir. 2006)............................................................................................7, 8, 9
`
`GreatGigz Sols., LLC v. Costco Wholesale Corp.,
`No. 6-21-CV-00807, 2022 WL 1037114 (W.D. Tex. Apr. 6, 2022) .........................................4
`
`Helferich Pat. Licensing, LLC v. New York Times Co.,
`778 F.3d 1293 (Fed. Cir. 2015)..................................................................................................7
`
`In re Nintendo of Am., Inc.,
`756 F.3d 1363 (Fed. Cir. 2014)..............................................................................................5, 7
`
`Topia Tech., Inc. v. Box, Inc. et al.,
`Case No. 6:21-CV-01372-ADA, ECF No. 72 ...........................................................................3
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`I.
`
`INTRODUCTION
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`DoDots’ opposition fails to rebut Defendants’ showing that the three customer-suit
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`exception factors compel staying the claims against Best Buy. DoDots makes the meritless (and
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`irrelevant) argument that it should be permitted to recover from Apple and Best Buy twice for
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`sales of the same products, which obviously is contrary to the law. DoDots also speculates about
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`future difficulty in obtaining discovery of Best Buy’s business activities related to the accused
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`products (see Opp. at 6-8), but DoDots’ speculation does not change the result of this motion.
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`DoDots also focuses on repair services offered by a Best Buy subsidiary that have nothing to do
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`with DoDots’ infringement claims against Best Buy. Because each factor favors severing and
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`staying DoDots’ claims against Best Buy, the Court should grant Defendants’ motion.
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`DoDots’ opposition also largely ignores the decisions Defendants cite—including ones
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`from this District—that have severed and stayed claims against customers under the customer-
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`suit exception in factually similar circumstances. At the same time, DoDots wrongly argues that
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`the customer-suit exception does not apply to “a single action against a customer and
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`manufacturer where there is not, nor should there be, a separate action against the customer.”
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`Opp. at 1, citing In re Dell In., 600 Fed. Appx. 728, 730 (Fed. Cir. 2015) (“Dell”). The Dell
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`decision does not stand for that proposition; on the contrary, the Dell court suggested that the
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`case could have been “simplified by a stay of some aspects of the proceedings,” but deferred to
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`the district court’s “considerable discretion.” Id. DoDots also claims the customer-suit exception
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`does not apply to “a single action alleging direct infringement against the customer, and indirect
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`infringement against the manufacturer.” Opp. at 1, citing Erfindergemeinschaft UroPep GbR v.
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`Eli Lilly & Co., No. 2:15-CV-1202-WCB, 2016 U.S. Dist. LEXIS 55205 (E.D. Tex. Apr. 26,
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`2016) (“UroPep”). UroPep does not support that proposition either; on the contrary, UroPep
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`involved the assertion of method claims where the infringement proof was different for the
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`customer (the direct infringer) versus the manufacturer (the indirect infringer). Here, DoDots
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`asserts only apparatus claims for the two patents asserted against Apple and Best Buy, so
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`UroPep does not apply. Setting aside DoDots’ misreading of the law, it has no rebuttal to
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`Defendants’ request that the claims against Apple customer Best Buy be severed and stayed.
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`II.
`
`ARGUMENT
`
`A.
`
`The Customer-Suit Exception Factors Favor Severing And Staying The
`Claims Against Best Buy.
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`The customer-suit exception factors favor a stay because (a) Best Buy merely resells the
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`Apple accused products; (b) Best Buy has agreed to be bound by the outcome against Apple; and
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`(c) Apple is the only source of the accused products. See Mot. at 6-8. DoDots does not address
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`the decisions from this District applying the customer-suit exception factors to sever and stay
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`claims against customers. Rather than addressing these factors, DoDots focuses on the Dell and
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`UroPep decisions, neither of which support DoDots’ position.
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`1.
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`The Three Customer-Suit Exception Factors Apply To Best Buy.
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`DoDots halfheartedly argues that the three customer-suit exception factors do not even
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`apply to Best Buy. Opp. at 1-5. Yet there is no legitimate dispute that the factors not only apply
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`to Best Buy, but favor severing and staying the claims against it. On the first factor, DoDots
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`concedes that Best Buy purchases the accused products from Apple and resells them. See Opp. at
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`2-3 (“Best Buy, the customer in this case, is located in this district and purchases the accused
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`Apple devices from Apple in this district.”). DoDots’ amended complaint alleges that Best Buy’s
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`“infringing activities” are offering for sale and selling the accused Apple products. See FAC at
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`¶¶ 105-108. DoDots’ infringement contentions similarly focus on Best Buy’s offers for sale and
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`sales of the Apple accused products. In fact, DoDots’ infringement contentions for Best Buy on
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`the ’083 and ’407 patents are substantively identical to DoDots’ contentions against Apple. See
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`Exs. 1-4. Best Buy indisputably is merely a reseller.
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`In a footnote in its opposition, DoDots tries to claim Best Buy is more than a reseller by
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`pointing to the tech support “Geek Squad” service. Opp. at 3 n.2. The problem with DoDots’
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`argument is that Geek Squad appears nowhere in DoDots’ amended complaint or in its
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`infringement contentions—Geek Squad and its services literally have nothing to do with this
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`case, and Best Buy customers are not obligated to use the Geek Squad to repair or service their
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`Apple products. This is why DoDots’ allegations against Best Buy are based on offers to sell and
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`sales of Apple products only. See Opp. at 4 (“Here, DoDots’ allegations against Best Buy
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`defendants are that they, as the customer, directly infringe by, inter alia, offering to sell and
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`selling the Accused Apple Devices”); see also FAC at ¶¶ 105-108.
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`Even if the Court were to find that Best Buy was more than a mere reseller because it also
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`“uses” or “promotes” the accused Apple products, that still would not be enough to overcome the
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`customer-suit exception. Faced with that precise argument, this Court correctly held in another
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`case that the majority of the liability rested on the supplier: “[Plaintiff] only accuses [customers]
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`of using or promoting the Box accused products. Thus, based on [Plaintiff’s] infringement
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`allegations, Box’s liability at least partially determines whether [customers] are also liable.”
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`Topia Tech., Inc. v. Box, Inc. et al., Case No. 6:21-CV-01372-ADA, ECF No. 72 at 7. DoDots
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`does not contend Best Buy designed or developed the accused products (nor could it), so
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`DoDots’ attempt to argue Best Buy is more than a reseller fails.
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`On the second and third factors, DoDots does not dispute that Best Buy has agreed to
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`abide by the outcome of DoDots’ case against Apple, nor does DoDots meaningfully dispute
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`Apple is the sole supplier of the accused products. Rather, DoDots feigns a lack of information
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`about whether Apple is the sole supplier. Opp. at 7. But both Defendants’ motion (Mot. at 8) and
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`DoDots’ opposition (Opp. at 2, 7) confirm the obvious—Apple is the sole supplier of its own
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`products. If DoDots needs discovery to confirm that fact (which it does not), it may seek that
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`discovery from Apple when fact discovery opens.
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`Ultimately, DoDots has no rebuttal to the customer-suit exception factors. The cases from
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`this District cited by Defendants in their opening brief, which DoDots addresses only in passing,
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`support granting this motion. See Mot. at 4-9 (citing Flygrip, Inc. v. Walmart Inc., No. 6:21-CV-
`
`01082-ADA, 2022 WL 2373714, at *4 (W.D. Tex. June 29, 2022); GreatGigz Sols., LLC v.
`
`Costco Wholesale Corp., No. 6-21-CV-00807, 2022 WL 1037114, at *3 (W.D. Tex. Apr. 6,
`
`2022)).
`
`2.
`
`The Dell Decision Does Not Foreclose The Application Of The
`Customer-Suit Exception Here.
`
`DoDots misconstrues the nonprecedential Dell decision to try to change the law. DoDots
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`claims “the customer-suit exception does not apply to a single action against both the customer
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`and manufacturer where there is no basis for a separate action against the customer because
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`under those circumstances there is no risk of duplicative litigation.” Opp. at 2. The Dell decision
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`does not support that proposition and does not proscribe the application of the customer-suit
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`exception here. See Dell, 600 F. App’x at 729-30. On the contrary, the Dell court suggested that
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`the district court could have exercised its discretion to stay the case against the customer because
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`“the claims here are related, and the complexity of the case could perhaps be simplified by a stay
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`of some aspects of the proceedings while others go forward.” Id. at 730. But the Dell court
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`ultimately concluded it was “not prepared to say [the district court’s] conclusion was so far
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`outside the district court’s considerable discretion in managing its own docket to take the
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`extraordinary step of issuing mandamus.” Id. Dell’s deferential holding is the opposite of the
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`absolute prohibition of the customer-suit exception that DoDots argues. Indeed, Dell confirms
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`the customer-suit exception applies here, where DoDots has duplicated its claims against the
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`supplier (Apple) and reseller (Best Buy) of the same accused products on the same patents.
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`Furthermore, it is unclear what DoDots means when it claims there is “no grounds for a
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`separate action” against Best Buy. See Opp. at 2. If DoDots means that its claims against Best
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`Buy are derivative of its claims against Apple, Defendants agree. But DoDots then makes the
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`opposite claim that “there is absolutely no risk” of duplicative proceedings (Opp. at 2-3), which
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`of course is not true. DoDots cites Blue Gentian, LLC v. Telebrands Corp., 2014 U.S. Dist.
`
`LEXIS 194573, at *13 (D.N.J. Apr. 30, 2014) for the proposition that the risk of duplicative
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`proceedings is “eliminated” by the fact that Apple and Best Buy are represented by the same
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`counsel. Opp. at 3. Blue Gentian does not stand for that proposition and is not good law in any
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`event. See Blue Gentian, LLC v. Telebrands Corp., 2014 U.S. Dist. LEXIS 194568, at *1-2
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`(D.N.J. July 14, 2014) (rejecting magistrate judge’s recommendation and remanding in light of
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`In re Nintendo of Am., Inc., 756 F.3d 1363 (Fed. Cir. 2014)). Subsequent to the decision DoDots
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`cites, the magistrate judge reversed course and severed and stayed the retailer defendants under
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`Nintendo. See Blue Gentian, LLC v. Telebrands Corp., No. 1:13-cv-04627 (D.N.J. Oct. 2, 2014),
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`ECF No. 115 at 7-11. DoDots’ citation to Blue Gentian therefore proves that Defendants’
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`position is correct.
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`3.
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`UroPep And Broadcom Do Not Foreclose The Application Of The
`Customer-Suit Exception Here.
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`DoDots next cites the UroPep and Broadcom decisions to argue that the customer-suit
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`exception does not apply because DoDots accuses Apple of indirect infringement and Best Buy
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`of direct infringement. Opp. at 4-5. These decisions do not support DoDots’ position. UroPep
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`involved the assertion of method claims drawn to a therapeutic process of treating benign prostatic
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`hyperplasia using certain compounds. UroPep, 2016 U.S. Dist. LEXIS 55205, at *2, *7 (E.D. Tex.
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`Apr. 26, 2016). Because the claims were method claims, there was no allegation that the accused
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`drug infringed “off the shelf.” Id. at *8. Instead, UroPep alleged that the drug manufacturer, Eli
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`Lilly, indirectly infringed by inducing customers, including the defendant Brookshire, to directly
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`infringe by carrying out the claimed therapeutic method. Id. As a result, the court reasoned that
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`“the issue of infringement is not entirely common to Brookshire and Lilly, as proof of infringement
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`by Lilly would not necessarily establish infringement by Brookshire.” Id. at *8-9. The district court
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`therefore concluded that the customer-suit exception did not apply, but the court certainly did not
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`hold that the customer-suit exception cannot ever apply where a plaintiff accuses a manufacturer
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`of indirect infringement and a customer of direct infringement.
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`In fact, DoDots misleadingly quotes UroPep to argue that “Federal Circuit Judge Bryson,
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`sitting by assignment in the Eastern District of Texas, found that the customer-suit exception did
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`not apply to cases where the ‘manufacturers … are indirect infringers and customers … are
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`direct infringers.’” Opp. at 4 (selectively quoting UroPep at *4). The complete quote, however,
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`contradicts DoDots’ broad reading of the decision and confirms Defendants’ position:
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`Because of these differences between cases involving, on the one
`hand, manufacturers and customers who are both direct infringers
`and, on the other hand, manufacturers who are indirect infringers
`and customers who are direct infringers, courts have treated the
`latter class of cases differently when motions have been made to
`sever and stay the actions against customers.
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`Id. (underlined portions omitted by DoDots). The two patents asserted against Apple and Best
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`Buy do not involve method claims; rather, this is a scenario where the manufacturer (Apple) and
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`the customer (Best Buy) are both alleged direct infringers because Best Buy resells the products
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`supplied by Apple. See FAC at ¶ 105 (“Defendant BBY has used, sold, sells, and offers for sale
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`in its stores in this district certain Accused Apple Devices[.]”). In this way, this case is much
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`closer to Nintendo, where the Federal Circuit granted mandamus directing the district court to
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`stay the case as to Best Buy and other retailer defendants who acted as resellers of products made
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`by Nintendo. Nintendo, 756 F.3d at 1365.
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`DoDots’ argument that it can sue Apple and Best Buy for sales of the same products
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`merely because it accuses Apple of indirect infringement and Best Buy of direct infringement
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`also runs afoul of the patent exhaustion doctrine, whose “core notion [is] that exhaustion lifts
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`legal restrictions on an authorized acquirer.” Helferich Pat. Licensing, LLC v. New York Times
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`Co., 778 F.3d 1293, 1302 (Fed. Cir. 2015); see also Glenayre Elecs., Inc. v. Jackson, 443 F.3d
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`851, 864 (Fed. Cir. 2006) (“[A] party is precluded from suing to collect damages for direct
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`infringement by a buyer and user of a product when actual damages covering that very use have
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`already been collected from the maker and seller of that product.”). DoDots tries to sidestep the
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`exhaustion argument by concluding that the doctrine’s “relevance … to the instant motion is
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`questionable” and “no reason to sever and stay a case.” Opp. at 10. Quite the opposite, DoDots’
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`argument for an improper double recovery against both Apple and Best Buy for sales of the same
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`products actually favors severing and staying the claims against Best Buy.
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`DoDots also cites Cal. Inst. Of Tech. v. Broadcom Ltd., 2019 U.S. Dist. LEXIS 231027
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`(C.D. Cal. 2019) to suggest that duplicative infringement and invalidity issues do not favor
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`severing and staying claims against a customer. Opp. at 4. However, the Broadcom court
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`contrasted the circumstances there from the facts here, explaining that “only very late in the
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`game did [Defendants] make this request for severance and stay” after “over three years of
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`Defendants’ presenting a single, ‘united front’ defense, including with representation by the
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`same patent counsel and a significant number dispositive and non-dispositive motions filed
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`collectively between them.” Broadcom, 2019 U.S. Dist. LEXIS 231027, at *26-27. Against that
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`backdrop, the court did not want to risk “the possibility of two trials on this subject matter
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`instead of one (even if the second might only relate to damages disputes and tangential issues).”
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`Id. at *26. Broadcom therefore lends no support to DoDots’ argument. The present case is still in
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`its infancy, and claim construction and fact discovery have not yet begun. DoDots’ duplicative
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`claims against Apple and Best Buy favor staying the case against Best Buy.
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`B.
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`The Traditional Stay Factors Favor Severing And Staying DoDots’ Claims
`Against Best Buy.
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`DoDots argues in passing that the traditional stay factors do not favor staying the claims
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`against Best Buy. As an initial matter, when the customer-suit exception factors are met—which
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`they are here—that is often dispositive, so the Court need not address the traditional stay factors.
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`See Flygrip, 2022 WL 2373714, at *4. But in any event, DoDots does not dispute that fact
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`discovery has not begun and that trial (which was scheduled after Defendants filed this motion),
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`is set for June 2024, more than 17 months from now. DoDots also does not dispute that staying
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`the claims against Best Buy would significantly streamline the issues in this case, given that all
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`of the technical discovery rests with Apple, not Best Buy.
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`Rather than addressing the stay factors head-on, DoDots argues that staying its claims
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`against Best Buy would complicate DoDots’ damages case because it needs information about
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`Best Buy’s “purchases from Apple” and Best Buy’s profits. Opp. at 6-7. But DoDots cannot and
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`does not explain why it can double-recover from Apple and Best Buy for sales of the same
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`products. See Glenayre, 443 F.3d at 864. Further, information about Apple’s sales to Best Buy
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`are equally available from Apple, so obtaining that information from Best Buy is not necessary.
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`And the Federal Circuit has rejected the notion that profit margin information at a different point
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`in the supply chain is relevant to damages. See Cal. Inst. of Tech. v. Broadcom Ltd., 25 F.4th
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`976, 994 (Fed. Cir. 2022) (“[A] higher royalty is not available for the same device at a different
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`point in the supply chain.”). DoDots also claims it needs information from Best Buy about “(1)
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`its agreement with Apple; (2) the ‘funding’ for any ‘promotional programs’ it runs for Apple;
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`and (3) costs and benefits associated with its ‘operation of vendor-focused [Apple] shopping
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`experiences within’ its stores.” Id. at 8. Even assuming these three categories of information are
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`discoverable (which is doubtful), DoDots can obtain this information from Apple.
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`DoDots further argues that staying the case against Best Buy would prejudice DoDots
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`because it “would be forced to proceed against Apple for indirect infringement without charging
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`any party with direct infringement.” Opp. at 7 (citing UroPep, 2016 U.S. Dist. LEXIS 55205, at
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`*14). However, DoDots ignores that (a) it also accuses Apple of direct infringement (FAC at ¶¶
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`114, 123, 130) and (b) it can identify Best Buy as a direct infringer without Best Buy being a
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`party to the case. DoDots’ argument just repackages its flawed argument that it can separately
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`recover from both Apple and Best Buy for sales of the same products based on the same patents.
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`See Glenayre, 443 F.3d at 864. Thus, the traditional stay factors strongly favor severing and
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`staying DoDots’ claims against Best Buy.
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`III.
`
`CONCLUSION
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`For the foregoing reasons and those stated in Defendants’ opening brief, the Court should
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`sever and stay DoDots’ claims against Best Buy.
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`Dated: January 18, 2023
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`
`
`Respectfully submitted,
`
`/s/ John M. Guaragna
`John M. Guaragna
`Texas Bar No 24043308
`DLA PIPER LLP (US)
`303 Colorado St., Suite 3000
`Austin, TX 78701-3799
`Tel: 512.457.7125
`Fax: 512.457.7001
`john.guaragna@us.dlapiper.com
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`Case 6:22-cv-00533-ADA Document 65 Filed 01/18/23 Page 13 of 13
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`Sean C. Cunningham (pro hac vice)
`Robert Williams (pro hac vice)
`DLA PIPER LLP (US)
`401 B Street, Suite 1700
`San Diego, CA 92101
`Tel: 619.699.2700
`Fax: 619.699.2701
`
`Erik Fuehrer (pro hac vice)
`Sangwon Sung (pro hac vice)
`Marinna C. Radloff (pro hac vice)
`DLA PIPER LLP (US)
`2000 University Avenue
`East Palo Alto, CA 94303-2214
`Tel: 650.833.2000
`Fax: 650.833.2001
`
`Jackob Ben-Ezra (Bar No. 24073907)
`DLA PIPER LLP (US)
`845 Texas Avenue
`Suite 3800
`Houston, TX 77002-5005
`Tel: 713.425.8431
`Fax: 713.300.6031
`
`ATTORNEYS FOR DEFENDANTS APPLE
`INC., BEST BUY STORES, L.P.,
`BESTBUY.COM, LLC, and BEST BUY
`TEXAS.COM, LLC
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served on January 18, 2023, to all counsel of record who are deemed to have
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`consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(b)(1). Any
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`other counsel of record will be served by a facsimile and/or first-class mail.
`
`/s/ John M. Guaragna
`John M. Guaragna
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