Case: 20-135 Document: 39-1 Page: 1 Filed: 07/13/2020
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` Misc. No. 2020-135
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
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`In re Apple, Inc.
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`On Petition for a Writ of Mandamus from the United States District Court for the
`Western District of Texas, Case No. 6:19-CV-00532-ADA, Judge Alan Albright
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`OPPOSED NON-CONFIDENTIAL MOTION OF RESPONDENT FOR
`LEAVE TO FILE SUR-REPLY BRIEF
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`Respondent, Uniloc 2017, LLC (“Uniloc”), respectfully moves for leave to
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`file a sur-reply brief in opposition to the Petition for a Writ of Mandamus. Uniloc
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`has conferred with Petitioner Apple, Inc. (“Apple”) and is authorized to state that
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`Apple opposes the relief requested in this Motion.
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`Uniloc understands that a sur-reply is not typical in proceedings before this
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`Court. This is an unusual proceeding, however, in which a sur-reply is warranted
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`because of the new issues and arguments in Apple’s Reply.
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`The reason for this request results from the timing of Apple’s Petition. Apple
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`filed its Petition before the District Court issued the written order that Apple
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`challenges. Because Apple short-circuited the regular appeal process, it addressed
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`what it thought the District Court would hold, and not any actual findings. The
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`District Court then issued a detailed, thirty-page written Order, and Uniloc
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`responded to Apple’s alleged points of error in light of the Court’s Order.
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` Misc. No. 2020-135
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`In re Apple, Inc.
`
`On Petition for a Writ of Mandamus from the United States District Court for the
`Western District of Texas, Case No. 6:19-CV-00532-ADA, Judge Alan Albright
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`OPPOSED NON-CONFIDENTIAL MOTION OF RESPONDENT FOR
`LEAVE TO FILE SUR-REPLY BRIEF
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`Respondent, Uniloc 2017, LLC (“Uniloc”), respectfully moves for leave to
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`file a sur-reply brief in opposition to the Petition for a Writ of Mandamus. Uniloc
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`has conferred with Petitioner Apple, Inc. (“Apple”) and is authorized to state that
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`Apple opposes the relief requested in this Motion.
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`Uniloc understands that a sur-reply is not typical in proceedings before this
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`Court. This is an unusual proceeding, however, in which a sur-reply is warranted
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`because of the new issues and arguments in Apple’s Reply.
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`The reason for this request results from the timing of Apple’s Petition. Apple
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`filed its Petition before the District Court issued the written order that Apple
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`challenges. Because Apple short-circuited the regular appeal process, it addressed
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`what it thought the District Court would hold, and not any actual findings. The
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`District Court then issued a detailed, thirty-page written Order, and Uniloc
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`responded to Apple’s alleged points of error in light of the Court’s Order.
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`Case: 20-135 Document: 39-1 Page: 2 Filed: 07/13/2020
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`The Order did not contain the alleged errors that Apple’s Petition raised, so
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`Apple raised new points of error in its Reply. That includes, among others, asserting
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`that the District Court committed the following alleged errors—none of which were
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`in Apple’s Petition (and, in many cases, were never presented to the District Court):
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`• Giving weight to the location of Uniloc’s physical documents under the
`sources-of-proof factor (Compare Petition, at 29–31 with Reply, at 6);
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`• Relying on Apple’s documentation located in the Western District of Texas,
`including its revenue and royalty information under the sources-of-proof
`factor (Compare Petition, at 29–31 with Reply, at 7);
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`• Giving weight to the location of Huawei and not giving weight to the
`numerosity of witnesses under the compulsory-process factor (Compare
`Petition, at 26–29 with Reply, at 8);
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`• Giving weight to the locations of the inventors, patent prosecution attorney,
`a prior art witness, and Uniloc’s witnesses under the willing-witnesses
`factor (Compare Petition, at 18–24 with Reply, at 10–11); and
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`• Allowing the case to advance before ruling on the Motion to Transfer under
`the judicial-economy factor (Compare Petition 32–33 with Reply, at 13–
`14).
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`None of those alleged errors were in Apple’s Petition. Apple thus waived
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`these issues and arguments, as identified in Uniloc’s proposed sur-reply, and the
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`Court should disregard them. See, e.g., Amhil Enters. v. Wawa, Inc., 81 F.3d 1554,
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`1563 (Fed. Cir. 1996) (explaining that a reply brief is “not the appropriate place to
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`raise, for the first time, an issue for appellate review”); Kennametal, Inc. v. Ingersoll
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`Cutting Tool Co., 780 F.3d 1376, 1385 (Fed. Cir. 2015) (“[A]rguments not raised
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`until [the] reply brief are waived.”) (quoting Lifestyle Enter., Inc. v. United States,
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`Case: 20-135 Document: 39-1 Page: 3 Filed: 07/13/2020
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`751 F.3d 1371, 1377 (Fed. Cir. 2014)); Commc’ns. Test Design, Inc. v. Contec, LLC,
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`952 F.3d 1356, 1363 n.4 (Fed. Cir. 2020) (“It is well established that an issue not
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`raised by an appellant in its opening brief is waived.”).
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`Should the Court be inclined to consider Apple’s Reply, Uniloc respectfully
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`requests that the Court provide Uniloc leave to file the attached sur-reply, which fits
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`within the word limits for reply briefs (3,900 words). Good cause exists for this
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`request. Without leave, Uniloc is unable to address the merits of these new issues
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`that Apple raised in its Reply. That will prejudice Uniloc, should the Court entertain
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`Apple’s Reply.
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`Conversely, any prejudice to Apple from losing the “last word” results from
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`Apple’s decision to file its Petition before receiving the District Court’s written
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`Order. Had Apple waited for the Order, these proceedings would have followed the
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`normal briefing process. Apple’s rush to file its Petition, before the District Court’s
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`written Order, resulted in Apple raising new issues and arguments in Reply that were
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`not raised in the Petition. Should the Court consider those arguments (which Apple
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`waived), good cause exists to provide Uniloc with the opportunity to respond to
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`Apple’s allegations.
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`Uniloc is authorized to state that Apple opposes the relief requested in this
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`Motion.
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`Case: 20-135 Document: 39-1 Page: 4 Filed: 07/13/2020
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`Respectfully submitted,
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`By: /s/ Christian Hurt
`William E. Davis, III
`Texas State Bar No. 24047416
`bdavis@bdavisfirm.com
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`Christian J. Hurt
`Texas State Bar No. 24059987
`churt@bdavisfirm.com
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`The Davis Firm, PC
`213 N. Fredonia Street, Suite 230
`Longview, Texas 75601
`Telephone: (903) 230-9090
`Facsimile: (903) 230-9661
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`Counsel for Respondent
`Uniloc 2017, LLC
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`Dated: July 13, 2020
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`Case: 20-135 Document: 39-1 Page: 5 Filed: 07/13/2020
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`CERTIFICATE OF INTEREST
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`Counsel for Respondent, Christian Hurt, certifies the following:
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`1.
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`5.
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`The full name of every party or amicus represented by me is:
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`Uniloc 2017, LLC
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`The name of the real party in interest (if the party named in the caption
`is not the real party in interest) represented by me is:
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`None.
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`All parent corporations and any publicly held companies that own 10
`percent or more of the stock of the party or amicus curiae represented
`by me are:
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`CF Uniloc Holdings, LLC
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`The names of all law firms and partners or associates that appeared for
`the party or amicus now represented by me in the trial court or agency
`or are expected to appear in this court are:
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`William Ellsworth Davis, III, Christian J. Hurt, Debra Coleman,
`Edward K. Chin, Ty Wilson, Davis Firm, P.C.;
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`The title and number of any case known to counsel to be pending in this
`or any other court agency that will directly affect or be directly affected
`by this court’s decision in the pending appeal. See Fed. Cir. R.
`47.4(a)(5) and 47.5(b). (The parties should attach continuation pages as
`necessary):
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`No other appeal from these proceedings was previously before this
`Court or any other appellate court. There is no case pending in this
`Court or any other court that will directly affect or be directly affected
`by the Court’s decision here.
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`Case: 20-135 Document: 39-1 Page: 6 Filed: 07/13/2020
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`DATED: July 13, 2020
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`Respectfully submitted,
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`/s/ Christian Hurt
`Christian Hurt
`Attorney for Respondent
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`Case: 20-135 Document: 39-1 Page: 7 Filed: 07/13/2020
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`CERTIFICATE OF SERVICE
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`I, Christian John Hurt, being duly sworn according to law and being over the age
`of 18, upon my oath depose and say that:
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`I caused
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`the
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`foregoing OPPOSED NON-
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`On July 13, 2020,
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`CONFIDENTIAL MOTION OF RESPONDENT FOR LEAVE TO FILE
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`SUR-REPLY BRIEF to be filed with the Clerk of Court using the CM/ECF System,
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`which will serve via e-mail notice of such filing to all counsel registered as CM/ECF
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`users. Uniloc 2017 LLC will serve all counsel of record with a copy of its
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`Confidential Opposed Non-Confidential Motion of Respondent for Leave to Sur-
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`Reply Brief.
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`In addition, a courtesy copy will be mailed to:
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`Hon. Alan D. Albright
`U.S. District Judge
`U.S. District Court for the
`Western District of Texas
`800 Franklin Avenue, Room 301
`Waco, Texas 76701
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`July 13, 2020
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`/s/ Christian John Hurt
`Christian John Hurt
`Counsel for Plaintiff-Respondent
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`Case: 20-135 Document: 39-1 Page: 8 Filed: 07/13/2020
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`CERTIFICATE OF COMPLIANCE
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`This motion complies with the type-volume limitation of Federal Rule
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`1.
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`of Appellate Procedure 27(d)(2), because it contains 656 words excluding the
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`parts of the brief exempted by Federal Circuit Rule 27.
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`2.
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`This Motion does not contain words or numbers marked as confidential
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`but the attached Non-Confidential Sur-Reply complies with the limitations set
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`forth in Fed. Cir. R. 27(m) and contains 11 words, including numbers, redacted
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`and marked as confidential.
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`3.
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`This motion complies with the typeface requirements of Federal Rule
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`of Appellate Procedure 32(5)(A)(B), because it has been prepared in a
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`proportionally spaced typeface using Microsoft Word 2020 for Mac in Times
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`New Roman 14 point font.
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` Date: July 13, 2020
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`/s/ Christian John Hurt
`Christian John Hurt
`Counsel for Respondent
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`Case: 20-135 Document: 39-1 Page: 9 Filed: 07/13/2020
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`Misc. No. 2020-135
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`In re Apple, Inc.
`
`On Petition for a Writ of Mandamus from the United States District Court for the
`Western District of Texas, Case No. 6:19-CV-00532-ADA, Judge Alan Albright
`
`ORDER
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`Upon consideration of the Respondent’s Opposed Motion for Leave to File a
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`Sur-Reply, it is
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`ORDERED that Respondent’s motion is granted and that the Respondent is
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`provided leave to file the sur-reply attached to the Motion.
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`DATE: ____________
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`FOR THE COURT
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`_________________________
`Peter R. Marksteiner
`Clerk of Court
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`9
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