Case 2:25-cv-00952-JRG Document 57 Filed 01/13/26 Page 1 of 16 PagelD #:. 737
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`
`MARSHALL DIVISION
`§
`AGIS SOFTWARE DEVELOPMENT LLC, § Case No. 2:25-cv-00952-JRG
`§ (LEAD CASE)
`Plaintiff, §
`§ JURY TRIAL DEMANDED
`V. §
`§
`TRIMBLE INC. and CATERPILLAR §
`TRIMBLE CONTROL TECHNOLOGIES §
`LLC, §
`§
`Defendants. §
`AGIS SOFTWARE DEVELOPMENT LLC, Case No. 2:25-cv-00954-JRG
`(MEMBER CASE)
`Plaintiff,
`V. JURY TRIAL DEMANDED
`
`TYLER TECHNOLOGIES, INC.,
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`Defendant.
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`LN LD LD LD L L LD LD L L
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT, LLC’S
`RESPONSE IN OPPOSITION TO DEFENDANT
`TYLER TECHNOLOGIES, INC.’S MOTION TO DISMISS PLAINTIFF’S
`AMENDED CLAIMS OF INDIRECT AND WILLFUL INFRINGEMENT (DKT. 46)
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`Case 2:25-cv-00952-JRG Document 57 Filed 01/13/26 Page 2 of 16 PagelD #: 738
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`TABLE OF CONTENTS
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`Page(s)
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`L. INTRODUCTION ...ttt ettt ettt ettt e et e nteeneenseenseeneenseenees 1
`II. RESPONSE TO STATEMENT OF ISSUES ..ottt 2
`II. LEGAL STANDARD ......ooiitee ettt sttt ettt e nee s eneenaen 2
`IV, ARGUMENT ..ottt ettt ettt st b et eanesbe et s 4
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`A. AGIS’s Indirect and Willful Infringement Claims Should Not Be
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`DISINISSEA ...ttt ettt ettt ettt 4
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`1. AGIS Has Sufficiently Pled Pre-Suit Knowledge, at Least Through Willful
`BINANESS ...t e 5
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`2. If the Court is Not Satisfied with AGIS’s Allegations in the FAC, AGIS
`Should be Afforded the Opportunity to Amend ...........cccceeevieniieniienneennen. 8
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`V. CONCLUSION ...ttt ettt et e e 9
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`Case 2:25-cv-00952-JRG Document 57 Filed 01/13/26 Page 3 of 16 PagelD #: 739
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`TABLE OF AUTHORITIES
`Page(s)
`
`Cases
`Ashcroft v. Igbal,
`
`556 ULS. 662 (2009).....uieueeieeieeiiesieeee ettt ettt ettt e et este et e s st e st enteenee bt entesneeteeneeeneeneas 3
`Barkan Wireless IP Holdings, L.P. v. T-Mobile US, Inc.,
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`No. 2:21-cv-00034-JRG, 2021 WL 12310942 (E.D. Tex. Nov. 18, 2021) ..ccceecveveeeerieeeennne 4
`Barry v. Medtronic, Inc.,
`
`914 F.3d 1310 (Fed. Cir. 2019)...ciiiiiieiieieee ettt sttt enae e nne s 8
`Bell Atl. Corp. v. Twombly,
`
`550 ULS. 544 (2007 ) ueeuueeueeeeieieeie ettt ettt et s tee st ete et esseeteeneenteenseeneenneenneeneennes 2,3,4
`In re Bill of Lading Transmission & Processing Sys. Pat. Litig.,
`
`681 F.3d 1323 (Fed. Cir. 2012)...ciiiiiieieeieieee ettt 2,3,8
`Commil USA, LLC v. Cisco Sys., Inc.,
`
`S5T5 LS. 032 (2015) ittt ettt ettt ettt ettt e st e te et e e st et entesneeteenaeeneennens 5
`Dialect, LLC v. Bank of Am., N.A.,
`
`No. 2:24-CV-00207-JRG, 2024 WL 4980794 (E.D. Tex. Dec. 4, 2024) .......cccvvvverueennne. 5,6,7
`Dura Pharms., Inc. v. Broudo,
`
`544 TULS. 336 (2005) ..ccueeeueeeieeieeieeteeieetee st et et e sttt et et e et e bt et e st enteente st e bt enteeneeteeneeeneetens 2
`Global-Tech Appliances, Inc. v. SEB S.A.,
`
`563 ULS. 754 (201 1) uieiieiieiiee ettt ettt ettt et e st ente st e beentesneenseensesneennean 4,5
`Intell. Ventures I LLC v. Sprint Spectrum, L.P.,
`
`No. 2:17-CV-00662-JRG-RSP, 2019 WL 2959568, at *3 (E.D. Tex. Apr. 18,
`
`2019), R&R adopted, 2019 WL 1987204 (E.D. Tex. May 6, 2019)......cccccvevueveninenininieiennns 9
`Lexington Luminance LLC v .Lowe's Home Ctrs. LLC,
`
`No. 4:18-cv-301-ALM-KPJ, 2019 WL 1417440, at *2 (E.D. Tex. Mar. 13,
`
`2019), R&R adopted, 2019 WL 1407521 (E.D. Tex. Mar. 28, 2019) ....cccevvevvreieieenee 4,5
`Lifetime Indus., Inc. v. Trim-Lok, Inc.,
`
`869 F.3d 1372 (Fed. Cir. 2017)uuieieieieiieee ettt ettt et nee e nne s 3
`Longhorn Auto. Grp., LLC v. Mitsubishi Motors Corp.,
`
`No. 2:24-cv-00685-JRG, Dkt. 41 (Dec. 22, 2025)...c.ciiierieieeieiieieeeesie et 7,8
`Lormand v. US Unwired, Inc.,
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`565 F.3d 228 (5th Cir. 2009) ...oveeiieieeieeee ettt ettt e nne s 2,3
`
`i
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`Case 2:25-cv-00952-JRG Document 57 Filed 01/13/26 Page 4 of 16 PagelD #: 740
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`McZeal v. Sprint Nextel Corp.,
`501 F.3d 1354 (Fed. Cir. 2007)....ccutiiiiieieiieeieeieeeeieesieee sttt sttt ettt st st s 3
`
`Motiva Pats., LLC v. Sony Corp.,
`408 F. Supp. 3d 819 (E.D. TeX. 2019) ...eiiiiiiiiiieciieieeiesieee et 3,5,8
`
`Multimedia Techs. Pte. Ltd. v. LG Elecs. Inc.,
`No. 2:22-¢cv-00494-JRG-RSP, 2024 WL 1340360 (E.D. Tex. Mar. 1,2024) .......ccoeeeeverennnn. 3
`
`Novosteel SA v. U.S., Bethlehem Steel Corp.,
`284 F.3d 1261 (Fed. Cir. 2002)....c..viiieeieeeiee ettt e e e e e eeaveeeeavee e 9
`
`O’Daniel v. Indus. Serv. Sols.,
`022 F.3d 299 (5th Cir. 2019) ..eeiieiieeeeee et et 2
`
`Pat. Harbor, LLC v. DreamWorks Animation SKG, Inc.,
`No. 6:11-cv-229, 2012 WL 9864381 (E.D. Tex. July 27, 2012) .c..ooviieiiieiieiiecieeeeeeeeee e 4
`
`Script Sec. Sols. L.L.C. v. Amazon.com, Inc.,
`170 F. Supp. 3d 928 (E.D. TeX. 2016) ..cueieiieiiieiieeiieeieeeie ettt ettt 2,7
`
`SGK Props., L.L.C. v. U.S. Bank Nat’l Ass 'n for Lehman Bros. Small Balance
`Com. Mortg. Through Certificates, Series
`
`2007-3, 881 F.3d 933 (5th Cir. 2018) ..ecueeiieiieiiesieeie ettt 9
`Skinner v. Switzer,
`
`562 ULS. 52T (20T 1)ttt ettt ettt ettt et e be et e s st e te e st e eseebeeneesaeeseeneeeneensens 2
`In re Taasera Licensing LLC, Pat. Litig.,
`
`No. 2:22-CV-00063-JRG, 2023 WL 2465584 (E.D. Tex. Mar. 10, 2023)....ccccceveeveervereannne. 8
`In re Taasera Licensing,
`
`No. 2:22-MD-03042-JRG, 2023 WL 2716540 (E.D. Tex. Mar. 29, 2023)......ccccccvevurrvereennnne. 5
`Touchstream Techs., Inc. v. Altice USA, Inc.,
`
`No. 2:23-cv-00060-JRG, 2024 WL 1117930 (E.D. Tex. Mar. 14, 2024)......cccccvevveverrereannnne. 4
`Warsaw Orthopedic, Inc. v. NuVasive, Inc.,
`
`824 F.3d 1344 (Fed. Cir. 2016)...ccuuiiieiieieeieeie ettt et s e e 5,7
`Wooten v. McDonald Transit Assocs., Inc.,
`
`788 F.3d 490 (S5th Cir. 2015) cueeeeieiieieeeieeeee ettt ettt et s ae e neenneas 3
`Statutes
`R IR O T O B U (o) SRS 6,7
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`il
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`Case 2:25-cv-00952-JRG Document 57 Filed 01/13/26 Page 5 of 16 PagelD #: 741
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`Other Authorities
`Fed. R Civ. P. I2(D)(6).eeiiceieeeiieeceie ettt et e e s ve e e e aveeeeaseeeeaseeenneas 2,3
`ST B A O O A S BT ) 1 022 TR PSSR 9
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`v
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`Case 2:25-cv-00952-JRG Document 57 Filed 01/13/26 Page 6 of 16 PagelD #:. 742
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`Plaintiff AGIS Software Development, LLC (“AGIS” or “Plaintift”) files this response in
`opposition to Defendant Tyler Technologies, Inc.’s (“Tyler” or “Defendant”) Motion to Dismiss
`Plaintiff’s Amended Claims of Indirect and Willful Infringement (Dkt. 46).
`
`I. INTRODUCTION
`
`The Motion should be denied in its entirety because the First Amended Complaint (“FAC”)
`sufficiently pleads allegations to plausibly maintain claims of induced and willful infringement.
`As Tyler admits, AGIS amended its complaint to identify specific information regarding Tyler’s
`pre-suit knowledge of the Asserted Patents. Tyler’s arguments in the Motion are contrary to the
`case law of this District and this Court, and improperly characterize the allegations in the FAC.
`
`The FAC sufficiently pleads the required knowledge of the Asserted Patents through, for
`example, Tyler’s prior communications with Mr. Beyer and his team, at least as early as September
`27, 2005. See, e.g., Dkt. 33 (“FAC”), § 23. AGIS has specifically pled that Tyler communicated
`with Mr. Beyer and his team on several occasions, including with members of at least the public
`safety division of Tyler, and including, but not limited to. Tyler’s Director of Sales. /d. For the
`avoidance of doubt, Tyler’s public safety division is directly responsible for the Accused Products.
`AGIS has also pled that such communications included a demonstration and passing of materials
`identifying AGIS’s patent portfolio to Tyler’s public safety division. /d. Tyler’s arguments
`regarding the lack of factual allegations ignore the pleading standards in this District.
`
`Tyler also fails to properly raise any arguments that AGIS should not be afforded leave to
`further amend the FAC. Tyler has, therefore, waived its right to argue that any further amendment
`would be futile or improper. Should the Court find the pleadings in the FAC to be insufficient in
`any respect, AGIS should be afforded the opportunity to amend the FAC.
`
`For these reasons, which are set forth in more detail infra, the Motion should be denied in
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`its entirety.
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`II. RESPONSE TO STATEMENT OF ISSUES
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`1. The Court should not dismiss AGIS’s claims of indirect and willful infringement from the
`FAC because the FAC plausibly alleges factual claims for pre-suit knowledge of the Asserted
`Patents.
`
`III. LEGAL STANDARD
`
`The question on a Rule 12(b)(6) motion to dismiss is not whether the plaintiff will prevail
`on its claims, “but whether [the] complaint was sufficient to cross the federal court’s threshold.”
`Script Sec. Sols. L.L.C. v. Amazon.com, Inc., 170 F. Supp. 3d 928, 935 (E.D. Tex. 2016) (citing
`Skinner v. Switzer, 562 U.S. 521, 530 (2011)). The Court must “accept all well-pleaded facts in
`the complaint as true and view the facts in the light most favorable to the plaintiff.” O’Daniel v.
`Indus. Serv. Sols., 922 F.3d 299, 304 (5th Cir. 2019) (citation omitted). After viewing the facts
`most favorable to the plaintiff, “the court must then decide whether those facts state a claim for
`reliefthat is plausible on its face.” Script, 170 F. Supp. 3d at 935 (citation omitted). The plausibility
`standard “simply calls for enough fact to raise a reasonable expectation that discovery will reveal
`evidence of [the claim].” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007); accord id. at 559,
`(explaining that claims should only be dismissed at the pleading stage when there is no
`
`299
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`“‘reasonably founded hope that the [discovery] process will reveal relevant evidence’” (quoting
`Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005)); In re Bill of Lading Transmission &
`Processing Sys. Pat. Litig., 681 F.3d 1323, 1341 (Fed. Cir. 2012) (“As the Supreme Court has
`explained, the plausibility requirement is not akin to a ‘probability requirement at the pleading
`stage; it simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal’
`that the defendant is liable for the misconduct alleged.” (quoting Twombly, 550 U.S. at 556)).
`
`Courts “are not authorized or required to determine whether the plaintiff’s plausible inference . . .
`
`is equally or more plausible than other competing inferences.” Lormand v. US Unwired, Inc., 565
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`F.3d 228,267 (5th Cir. 2009) (citing Twombly, 550 U.S. at 556). “[ W]here the relevant information
`is beyond the access of the plaintiff, courts should generally permit discovery to proceed unless
`the complaint recites no more than sheer speculation about the plaintiff’s entitlement to relief.”
`Motiva Pats., LLC v. Sony Corp., 408 F. Supp. 3d 819, 827 (E.D. Tex. 2019) (citing Wooten v.
`McDonald Transit Assocs., Inc., 788 F.3d 490, 498 (5th Cir. 2015)); Ashcroft v. Igbal, 556 U.S.
`662, 679 (2009)).
`
`A motion to dismiss under Rule 12(b)(6) raises purely procedural questions that are
`governed by the law of the regional circuit. In re Bill of Lading, 681 F.3d at 1331 (citing McZeal
`v. Sprint Nextel Corp., 501 F.3d 1354, 1355-56 (Fed. Cir. 2007)). In the Fifth Circuit, motions to
`dismiss “are viewed with disfavor and are rarely granted.” Lormand, 565 F.3d at 232 (citation
`omitted). In the context of patent infringement, a complaint must “place the alleged infringer on
`notice of what activity is being accused of infringement.” Lifetime Indus., Inc. v. Trim-Lok, Inc.,
`869 F.3d 1372, 1379 (Fed. Cir. 2017) (quotation marks and alterations omitted). However, the
`plaintiff need not prove its case at the pleading stage. Id. “This evaluation will ‘be a context-
`specific task that requires the reviewing court to draw on its judicial experience and common
`sense.’” This standard ‘simply calls for enough facts to raise a reasonable expectation that discovery
`will reveal evidence of’ the necessary claims or elements.” Multimedia Techs. Pte. Ltd. v. LG
`Elecs. Inc., No. 2:22-cv-00494-JRG-RSP, 2024 WL 1340360, at *1 (E.D. Tex. Mar. 1, 2024)
`(citations omitted).
`
`To survive a motion to dismiss on a claim for indirect (induced) infringement, a complaint
`must “contain facts plausibly showing that [an accused infringer] specifically intended their
`customers to infringe the [patent or patents-in-suit] and knew that the customer’s acts constituted
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`infringement.” In re Bill of Lading, 681 F.3d at 1339. However, a plaintiff “need not prove its
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`inducement case at the time of filing, nor must it provide detailed factual support for every element
`of inducement.” Pat. Harbor, LLC v. DreamWorks Animation SKG, Inc., No. 6:11-cv-229, 2012
`WL 9864381, at *5 (E.D. Tex. July 27, 2012) (citation omitted); see also, Twombly, 550 U.S. at
`556 (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
`those facts is improbable, and that a recovery is very remote and unlikely.” (internal quotation
`marks and citation omitted)).
`
`To sufficiently plead pre-suit willful infringement, a plaintiff must plausibly allege that the
`defendant knew of an asserted patent before the plaintiff filed the lawsuit. Touchstream Techs.,
`Inc. v. Altice USA, Inc.,No. 2:23-cv-00060-JRG, 2024 WL 1117930, *3 (E.D. Tex. Mar. 14, 2024).
`To plead willful blindness, a plaintiff must plausibly plead that the defendant (1) subjectively
`believed that there is a high probability that a fact exists, and (2) took deliberate action to avoid
`learning of that fact. See Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 768 (2011).
`
`IV. ARGUMENT
`
`A. AGIS’s Indirect and Willful Infringement Claims Should Not Be
`Dismissed
`
`The FAC sufficiently pleads facts to maintain plausible claims for indirect and willful
`infringement against Tyler. At the pleading stage, allegations of induced infringement need only
`be sufficient to pass the “low bar required at the pleading stage, prior to claim construction.”
`Lexington Luminance LLC v .Lowe’s Home Ctrs. LLC, No. 4:18-cv-301-ALM-KPJ, 2019 WL
`1417440, at *2 (E.D. Tex. Mar. 13, 2019), R&R adopted, 2019 WL 1407521 (E.D. Tex. Mar. 28,
`2019); Barkan Wireless IP Holdings, L.P. v. T-Mobile US, Inc., No. 2:21-cv-00034-JRG, 2021
`WL 12310942, at *2 (E.D. Tex. Nov. 18, 2021) (“Therefore, it is reasonable to infer, at the motion
`to dismiss stage, that by selling infringing products and showing customers how to use those
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`products, [Defendant] intended those customers to infringe.”). To state a claim for induced
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`infringement, a plaintiff must show that the defendant “knew or should have known its actions
`induced others to commit infringing acts.” Lexington, 2019 WL 1417440, at *2. AGIS has met its
`burden.
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`1. AGIS Has Sufficiently Pled Pre-Suit Knowledge, at Least
`Through Willful Blindness
`
`The FAC includes sufficient allegations to establish pre-suit knowledge to maintain claims
`for indirect and willful infringement. The FAC includes at least the following allegations:
`regarding willful blindness, including prior communications between Tyler and AGIS. See, e.g.,
`FAC, 99 23-24, 34-35, 44-45. Each of these address pre-suit knowledge and specific intent, and
`premature dismissal of these claims without full and complete discovery is not warranted.
`
`First, the FAC sufficiently alleges pre-suit knowledge for indirect infringement through
`Tyler’s willful blindness of the Asserted Patents. See Warsaw Orthopedic, Inc. v. NuVasive, Inc.,
`824 F.3d 1344, 1347 (Fed. Cir. 2016) (finding the Supreme Court has consistently held that willful
`blindness is sufficient to establish the requisite knowledge for indirect infringement) (citing Glob.-
`Tech. Appliances, Inc. v. SEB S.A., 563 U.S. 754, 768 (2011)); Commil USA, LLC v. Cisco Sys.,
`Inc., 575 U.S. 632, 638 (2015)). “Knowledge of the patent can be shown directly or through
`evidence of willful blindness on the part of the alleged infringer.” In re Taasera Licensing, No.
`2:22-MD-03042-JRG, 2023 WL 2716540, at *5 (E.D. Tex. Mar. 29, 2023) (citing Motiva Pats.,
`408 F. Supp. at 828). “To plead willful blindness, a plaintiff must plausibly plead that the defendant
`(1) subjectively believed that there is a high probability that a fact exists and (2) took deliberate
`action to avoid learning of that fact.” Dialect, LLC v. Bank of Am., N.A., No. 2:24-CV-00207-JRG,
`2024 WL 4980794, at *3 (E.D. Tex. Dec. 4, 2024) (citing Glob.-Tech, 563 U.S. at 768). For
`example, the FAC alleges that “Defendant has adopted a policy of not reviewing the patents of
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`others, including specifically those related to Defendant’s specific industry, thereby remaining
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`willfully blind to the *251 Patent at least as early as the issuance of the Patents-in-Suit.” FAC, §
`23; see also id., 9 34, 44. The FAC further alleges that “Defendant, with knowledge that the
`Accused Products infringe the ’251 Patent at least as of the date of this Complaint, actively,
`knowingly, and intentionally induced, and continues to knowingly and intentionally induce direct
`infringement of the *251 Patent in violation of 35 U.S.C. § 271(b).” Id.
`
`Second, the FAC includes specific factual allegations regarding Tyler’s pre-suit knowledge
`of the Asserted Patents. For example, the FAC includes the following:
`
`Defendant, with knowledge that the Accused Products, or the use
`thereof, infringe the *251 Patent, at least as of September 27, 2005,
`knowingly and intentionally induced, and continue to knowingly
`and intentionally induce, direct infringement of the *251 Patent, by
`providing the Accused Products to end-users for use in an infringing
`manner. Defendant learned of and has been on notice of the AGIS
`patent portfolio, which includes the Asserted Patents, through prior
`communications with Defendant. For example, Mr. Beyer and his
`team communicated on several occasions with members of at least
`the public safety division of Defendant, including, but not limited to
`Defendant’s Director of Sales. On information and belief, such
`communications included a demonstration and the passing of
`materials which identified AGIS’s patent portfolio. To the extent
`Defendant disputes learning of AGIS’s patent portfolio and
`receiving notice through these communications, on information and
`belief, Defendant has adopted a policy of not reviewing the patents
`of others, including specifically those related to Defendant’s
`specific industry, thereby remaining willfully blind to the ’251
`Patent at least as early as the issuance of the Patents-in-Suit.
`
`FAC, q 23. Therefore, the FAC contains specific factual allegations, including details regarding
`Tyler’s communications with AGIS, including Mr. Beyer and his team, regarding the Asserted
`Patents, prior to the filing of the Complaint. This includes the exchange of communications, such
`as a demonstration and materials which identified the AGIS patent portfolio, and therefore
`received notice of the Asserted Patents through these communications.
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`Tyler’s reliance on Dialect, LLC, 2024 WL 4980794, at *3 is unavailing. In Dialect, the
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`Court found that “general knowledge of the asserted patents’ prior owner’s patent portfolio is
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`insufficient to plausibl[y] allege pre-suit knowledge of the asserted patents.” Id. The plaintiff in
`Dialect did not allege willful blindness based on the patent portfolio, pre-suit correspondence, or
`the patent application. /d. at *2. The Court found that the plaintiff failed to sufficiently plead pre-
`suit willful blindness because it failed to plausibly plead that defendant “(1) subjectively believed
`that there is a high probability that a fact exists and (2) took deliberate action to avoid learning of
`that fact.” Id. at *3. Accordingly, the Court found that because the Amended Complaint “fails to
`allege that Defendant subjectively believed that there is a high probability that the asserted patents
`existed and took deliberate actions to avoid learning of the asserted patents,” the “absence of such
`an allegation is dispositive.” Id. Here, AGIS’s allegations go beyond those of Dialect. AGIS has
`pled that “[t]o the extent Defendant disputes learning of AGIS’s patent portfolio and receiving
`notice through these communications, on information and belief, Defendant has adopted a policy
`of not reviewing the patent of others, including specifically those related to Defendant’s specific
`industry, thereby remaining willfully blind to the *251 Patent at least as early as the issuance of
`the Patents-in-Suit.” FAC, 9§ 23. AGIS further pled that “Defendant believed there was a high
`probability that others would infringe the 251 Patent, but remained willfully blind to the infringing
`nature of others’ actions.” Id. 9 24.
`
`This Court has held that “willful blindness can satisfy the knowledge requirement for active
`inducement under § 271(b) (and for contributory infringement under § 271(c)), even in the absence
`of actual knowledge.” Longhorn Auto. Grp., LLC v. Mitsubishi Motors Corp., No. 2:24-cv-00685-
`JRG, Dkt. 41, at 8 (Dec. 22, 2025) (citing Warsaw Orthopedic, Inc., 824 F.3d at 1347). In
`Longhorn, the Court found the plaintiff had sufficiently alleged willful blindness where “‘ignoring
`all patents as a matter of policy’ is ‘an affirmative action’ sufficient to plead willful blindness.” /d.
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`(citing Script Sec. Sols. L.L.C., 170 F. Supp. 3d at 937-38. The allegations under Longhorn mirror
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`those alleged by AGIS. Under the FAC’s allegations regarding willful blindness, AGIS has
`sufficiently pled that willful blindness can establish pre-suit knowledge for indirect infringement.
`See id.
`
`AGIS is not required to prove its indirect infringement case at the time of filing, nor must
`it provide detailed factual support for every element of its indirect infringement claims. /n re Bill
`of Lading, 681 F.3d at 1336. “The intent necessary for a claim of ‘[iJnducement can be found
`
`299
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`where there is [e]vidence of active steps taken to encourage direct infringement.”” In re Taasera
`Licensing LLC, Pat. Litig., No. 2:22-CV-00063-JRG, 2023 WL 2465584, at *4 (E.D. Tex. Mar.
`10, 2023) (quoting Barry v. Medtronic, Inc., 914 F.3d 1310, 1334 (Fed. Cir. 2019). “‘[A]ctive
`steps’ can include ‘advertising an infringing use,” ‘instructing how to engage in an infringing use,’
`and assisting in performing an infringing use.” Id. (quoting Motiva Pats., LLC, 408 F. Supp. 3d at
`830.
`
`Accordingly, the FAC sufficiently pleads facts to establish the required knowledge and
`specific intent to maintain claims for pre-suit indirect and willful infringement and the Motion
`should be denied in its entirety.
`
`At minimum, AGIS is entitled to discovery regarding the specific individuals who
`communicated with Mr. Beyer and his team regarding the Asserted Patents, and the individuals at
`Tyler who had exchanged and received the materials from AGIS identifying the AGIS patent
`portfolio. This motion is an attempt to prevent discovery into this highly relevant information.
`AGIS respectfully requests that the Court grant AGIS the opportunity to conduct discovery
`regarding these issues.
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`2. If the Court is Not Satisfied with AGIS’s Allegations in the
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`FAC, AGIS Should be Afforded the Opportunity to Conduct
`Discovery and Amend
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`While AGIS maintains that it has sufficiently and plausibly alleged pre-suit indirect and
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`Case 2:25-cv-00952-JRG Document 57 Filed 01/13/26 Page 14 of 16 PagelD #: 750
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`willful infringement, to the extent the Court is not satisfied with the sufficiency of AGIS’s
`allegations in the FAC, AGIS respectfully requests leave to file a second amended complaint after
`conducting fulsome discovery regarding pre-suit communications with Tyler. See SGK Props.,
`L.L.C. v. US. Bank Nat’l Ass’n for Lehman Bros. Small Balance Com. Mortg. Through
`Certificates, Series 2007-3, 881 F.3d 933, 944 (5th Cir. 2018) (“Federal Rule of Civil Procedure
`15(a)(2) states that the district ‘court should freely give leave [to amend] when justice so requires.’
`‘[T]he language of this rule ‘evinces a bias in favor of granting leave to amend,” and ‘[a] district
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`299
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`court must possess a ‘substantial reason’ to deny a request.’”). Tyler does not state in the Motion
`that further amendment would be futile, only that Tyler has already moved once. Because Tyler
`has failed to properly develop any argument that AGIS should be afforded the opportunity to
`further amend the FAC, they have waived the right to do so in reply. “It is black-letter law that
`arguments raised for the first time in a reply brief are waived ‘as a matter of litigation fairness and
`procedure.’” Intell. Ventures I LLC v. Sprint Spectrum, L.P., No. 2:17-CV-00662-JRG-RSP, 2019
`WL 2959568, at *3 (E.D. Tex. Apr. 18, 2019), R&R adopted, 2019 WL 1987204 (E.D. Tex. May
`6, 2019) (quoting Novosteel SA v. U.S., Bethlehem Steel Corp., 284 F.3d 1261, 1273 (Fed. Cir.
`2002)).
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`V. CONCLUSION
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`For the foregoing reasons, AGIS requests that the Court deny Defendant’s Motion to
`Dismiss Plaintiff’s Amended Claims of Indirect and Willful Infringement (Dkt. 46) in its entirety.
`Dated: January 13, 2026 Respectfully submitted,
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`/s/ Vincent J. Rubino, 111
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`Alfred R. Fabricant
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`NY Bar No. 2219392
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`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos
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`NY Bar No. 2894392
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`Email: plambrianakos@fabricantllp.com
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`Case 2:25-cv-00952-JRG Document 57 Filed 01/13/26 Page 15 of 16 PagelD #: 751
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`Vincent J. Rubino, I1I
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`NY Bar No. 4557435
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`Email: vrubino@fabricantllp.com
`FABRICANT LLP
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`411 Theodore Fremd Avenue,
`Suite 206 South
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`Rye, New York 10538
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
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`Justin Kurt Truelove
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`Texas Bar No. 24013653
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`Email: kurt@truelovelawfirm.com
`TRUELOVE LAW FIRM, PLLC
`100 West Houston Street
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`Marshall, Texas 75670
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`Telephone: (903) 938-8321
`Facsimile: (903) 215-8510
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`ATTORNEYS FOR PLAINTIFF
`AGIS SOFTWARE DEVELOPMENT, LLC
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`Case 2:25-cv-00952-JRG Document 57 Filed 01/13/26 Page 16 of 16 PagelD #: 752
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on January 13, 2026, all counsel of record who are
`deemed to have consented to electronic service are being served with a copy of this document via
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`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Vincent J. Rubino, 111
`Vincent J. Rubino, 111
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