IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC d/b/a 

BRAZOS LICENSING AND 

DEVELOPMENT,

Plaintiff,

v.

ZTE CORPORATION, 

Defendant.

Civil Action No.: 6:20-00487-ADA

Civil Action No.: 6:20-00488-ADA

Civil Action No.: 6:20-00489-ADA

Civil Action No.: 6:20-00490-ADA

Civil Action No.: 6:20-00491-ADA

Civil Action No.: 6:20-00493-ADA

Civil Action No.: 6:20-00494-ADA

Civil Action No.: 6:20-00495-ADA

Civil Action No.: 6:20-00496-ADA

Civil Action No.: 6:20-00497-ADA

JURY TRIAL DEMANDED

FILED UNDER SEAL

PLAINTIFF WSOU INVESTMENT, LLC D/B/A BRAZOS LICENSING 

AND DEVELOPMENT’S REPLY MEMORANDUM OF LAW IN SUPPORT OF ITS 

MOTION FOR LEAVE TO AMEND ITS FINAL INFRINGEMENT CONTENTIONS

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TABLE OF CONTENTS

Page

I. ZTE DOES NOT REFUTE BRAZOS’S SHOWING OF GOOD CAUSE ....................... 1

II. ZTE WILL NOT BE PREJUDICED BY BRAZOS’S AMENDMENT............................ 4

III. CONCLUSION................................................................................................................... 5

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TABLE OF AUTHORITIES

Page(s)

Cases

ActiveVideo Networks, Inc. v. Verizon Communications, Inc.,

No. 2:10-cv-248, 2011 WL 7036048 (E.D. Va. July 5, 2011)...................................................1

Alacritech, Inc. v. Centurylink, Inc.,

No. 2:16-CV-00693-RWS-RSP, 2017 WL 3593787 (E.D. Tex. Aug. 20, 2017)......................5

Am. Video Graphics, L.P. v. Elec. Arts, Inc.,

359 F. Supp. 2d 558 (E.D. Tex. 2005).......................................................................................4

Escort, Inc. v. Uniden America Corp.

No. 3:18-CV-0161-N, 2019 WL 7900789 (N.D. Tex. Aug. 7, 2019) .......................................1

Keranos, LLC v. Silicon Storage Tech.,

797 F.3d 1025 (Fed. Cir. 2015)..................................................................................................4

Papst Licensing GmbH & Co., KG v. Apple, Inc.,

No. 6:15-CV-01095-RWS, 2020 WL 11613777 (E.D. Tex. July 1, 2020) ...............................4

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The record amply shows that Brazos is properly seeking to amend its final infringement 

contentions (“FICs”) despite ZTE’s attempts to mischaracterize the record or whitewash its own 

misconduct to lay the blame on Brazos for ZTE’s egregious dilatoriness.1

I. ZTE DOES NOT REFUTE BRAZOS’S SHOWING OF GOOD CAUSE 

As ZTE knows, Brazos’s FICs were timely served on July 16, 2021. Indeed, on July 17, 

2021, ZTE’s counsel emailed Brazos’s counsel complaining that he was unable to open Brazos’s 

FICs that were provided “last night,” i.e., on July 16. (See Ex. 2) (L. Lavenue email to R. 

Loveless).2 What ZTE mischaracterizes as “sloppy advocacy” (Opp. 5) is actually timely service.3 

Moreover, Brazos demonstrated good cause for its amendment. Specifically, ZTE’s 

unreasonable delays in producing documents and providing access to source code prevented 

Brazos from amending its FICs sooner. (Mot. at 7-8.) ZTE simply reverses causality. First, it 

seeks to blame Brazos for delays caused by ZTE’s discovery failures. (Opp. at 5.) But ZTE’s 

misrepresentation that Brazos had “nearly non-stop access to source code” ignores the fact that for 

 

1 ZTE nonsensically complains that Brazos imposed “duplicate briefing” on the Court. (Opp. at 

1.) But Brazos served its Amended FICs on September 27, and ZTE objected to them on 

September 29. Ex. 1 (exhibits hereto are attached to the November 10, 2022 Declaration of 

Jonathan K. Waldrop filed concurrently herewith). Brazos accordingly properly moved for leave 

to amend, and it was ZTE that decided to file a separate motion to strike instead of simply 

responding to Brazos’s Motion. 

2 Brazos’s statement that it served its FICs on July 17, 2021 (Mot. at 8, n. 8) was made prior to 

Brazos’s current counsel being able to access the full email history from prior counsel’s files. The 

FICs were timely served, ZTE knows that and Exhibit 2 proves as much. Thus, whereas ZTE 

accuses Brazos of being “borderline deceptive” (Opp. at 10), ZTE has been overtly so.

3 Even had Brazos’s FICs been a day late – which they were not - ZTE has continued to litigate 

this matter for more than a year since those FICs were served without contesting their timeliness 

or moving to strike them until now. It certainly would not be prejudiced by a one-day delay, which 

in any event did not occur. See, e.g., Escort, Inc. v. Uniden America Corp. No. 3:18-CV-0161-

N, 2019 WL 7900789, at *1 (N.D. Tex. Aug. 7, 2019) (“Courts have broad discretion to grant 

untimely motions to supplement ... infringement contentions”); ActiveVideo Networks, Inc. v. 

Verizon Communications, Inc., No. 2:10-cv-248, 2011 WL 7036048, at *2 (E.D. Va. July 5, 2011) 

(denying motion to exclude untimely contentions where defendant was not prejudiced).

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several months Brazos repeatedly requested access to ZTE’s source code and ZTE repeatedly

concocted excuses to refuse it, claiming that those requests were informal, improper or 

unreasonable. See, e.g., Exs. 3, 4. Brazos first gained access to ZTE’s source code in April 2022, 

nine months after serving its FICs. Further, the available source code was deficient and ZTE was 

compelled to supplement, which it only did in August 2022. (Mot. at 2.) Brazos served its 

Proposed Amended FICs in September and moved to amend shortly after reviewing that code.

Similarly disingenuous is ZTE’s argument (Opp. at 5, 7-9) that Brazos’s amendment is

based primarily on publicly available documents and, therefore, Brazos waited unnecessarily to 

seek leave to amend. That argument mischaracterizes (or ignores) the lengthy disputes caused by 

ZTE’s failure to comply with its discovery obligations, including its glacial, deficient production 

of internal technical documents, choosing instead to produce primarily publicly available 

documents. (Mot. at 2-4.) While ZTE produced technical specifications from obscure third-party 

websites instead of producing its own, Brazos was understandably looking for original technical 

documents to determine whether/how its FICs needed to be amended. Brazos vigorously pursued 

discovery toward that end in the hope that discovery would include production of ZTE’s internal 

technical documents.4 As it has not, and the Court only recently directed that further deficiencies 

in ZTE’s technical document production should be pursued in depositions (Ex. 5, Sept. 19, 2022

Tr. at 50:14-20, Dkt. 266), Brazos ultimately had to rely on those obscure, third-party website 

technical specifications to identify ZTE’s infringing products and amend its FICs.

5

 While ZTE 

attempts to dismiss its extensive history of dilatory misconduct as a “red herring tirade” (Opp. at 

 

4 ZTE’s argument, therefore, that Brazos supposedly “does not provide any explicit reason why it 

only recently decided to amend its FICs” (Opp. at 8) is simply false. And it would have been a 

waste of the parties’ and judicial resources to amend the FICs based solely on “publicly available” 

documents if ZTE’s internal technical documents affected Brazos’s amendments. 

5

See Ex. 6, ZTE relying on https://www.devicespecifications.com/en/brand/60dd29.

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6), that history demonstrates exactly why Brazos was prevented from effectively amending its 

FICs prior to the instant motion. (See Mot. at 2-5.) 

ZTE’s attempted refutations of its unreasonable delays are baseless. Its assertion regarding 

its production of “12,000” documents (Opp. at 6) omits that much of that production consisted of 

printouts from Facebook/Twitter/ZTE’s website and other publicly available information, i.e., it 

does not reflect ZTE’s internal technical documents. (See Mot. at 4-5.)6 Likewise, ZTE’s 

reference to the Court’s September 19, 2022, determination that ZTE purportedly “satisfied 

production of technical documents” (Opp. 6) simply ignores the months of discovery disputes 

Brazos was compelled to undergo to wrestle from ZTE documents and source code that it should 

have produced in the ordinary course of discovery. (Mot. at 2-5.) And contrary to ZTE’s 

assertions, Brazos did not merely “sprinkle” source code-based revisions in its amended FICs. 

(Opp. at 1.) Rather, the source code review allowed Brazos to chart products in a manner that 

resolves claimed deficiencies in ZTE’s Motion to Strike (e.g., Dkt. 268 at 14). ZTE’s argument 

that it timely challenged Brazos’s FICs (Opp. at 6) is belied by its concession that it only raised 

those alleged “deficiencies” in May 2022, 10 months after Brazos filed its FICs. Also absurd is 

ZTE’s contention that its repeated discovery failures are merely “unilateral beliefs” on Brazos’s 

part. (Opp. at 6.) The numerous Court orders compelling ZTE to comply with its discovery 

obligations belie ZTE’s claim. See, e.g., Dkt. Nos. 222, 231, 232, 266.

ZTE’s assertion that Brazos has not explained why it did not seek leave to amend before 

the July 16, 2021, deadline (Opp. at 5, 8) is thus particularly outrageous. Unlike ZTE, Brazos does 

 

6 That Brazos has “produced only 315 documents” (Opp. at 6) is neither surprising nor concerning. 

ZTE, as the party manufacturing and distributing the infringing products, has the technical, 

marketing and other documents relevant to those products, not Brazos, the patent holder. 

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not wish to waste time and resources with redundant infringement contention amendments, which

ZTE’s, trickled, “rolling” production would have necessitated.

ZTE’s argument (Mot. at 2-3, 7) that Brazos seeks to “maintain these actions in an 

indefinite cycle of discovery to burden ZTE” is also a gross reversal of causality. Brazos has an 

undeniable interest in speedy adjudication so that it can recover for ZTE’s continuing 

infringements of its patents. To that end, it is Brazos that has doggedly pursued discovery to 

advance these cases while ZTE delayed and frustrated discovery at every turn. (Mot. at 1-5.)7

II. ZTE WILL NOT BE PREJUDICED BY BRAZOS’S AMENDMENT

ZTE overstates the purported prejudice to it if Brazos’s motion is granted. First, the 

amended FICs do not add claims, nor do they change the underlying infringement theories. 

Second, contrary to ZTE’s contentions (Opp. at 7), Brazos does not seek to add “over 400” new 

devices to these cases. Rather, Brazos seeks to: (1) add the Accused products subject to the 

May 12, 2022, Order on reasonably similar products (Ex. 7, col. E); (2) explicitly list products that 

were accused in the FICs under the “Series” name but not under each sub-model name (Id. at cols.

B and C)

8;

(3) add versions of devices that were improperly withheld from discovery thus far (Id.

at col. D)

9

; (4) for clarity, include products already identified in the claim charts, but not listed in 

 

7 ZTE’s cases are inapposite. See Papst Licensing GmbH & Co., KG v. Apple, Inc., No. 6:15-CV01095-RWS, 2020 WL 11613777, at *3 (E.D. Tex. July 1, 2020) (plaintiff not diligent where it 

had information necessary to amend long before motion, case was 5 years old, discovery was

completed, and plaintiff waited 6 months after completion of IPR to seek to amend); Keranos, LLC

v. Silicon Storage Tech., 797 F.3d 1025, 1038 (Fed. Cir. 2015) (reversing denial of motion to 

amend where publicly available information may not have been sufficient to amend infringement 

contentions); Am. Video Graphics, L.P. v. Elec. Arts, Inc., 359 F. Supp. 2d 558, 561 (E.D. Tex. 

2005) (absent access to defendant’s source code plaintiff adequately set forth infringement). 

8 For instance, Brazos accused ZXR10 5250 Series in the FICs, and the amendments specify all 

infringing devices in this Series, including 5250-12TC, 12PC, 28TC, -52TC, -28PC, 52PC.

9 For example, Brazos accused the Axon 30 Ultra, and the First Amended FICs list the Axon 30 

Pro, Axon 30 5G, Axon 30 Ultimate. 

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cover pages10; (5) add Accused Products identified as infringing during discovery; and (6) remove 

products that are no longer being asserted.11 Thus, the actual universe of additional products for 

which ZTE will have to produce documents is narrower than ZTE contends (Exs. 7-8.) (and in any 

event, discovery is ongoing, with depositions to be completed by December 15, 2022, leaving 

sufficient time for ZTE to produce documents regarding additional products). (Mot. at 10.) In 

fact, ZTE’s counsel conceded that the production of documents regarding additional, similar 

products is straightforward. See Ex. 9, May 12, 2022 Hearing Tr. at 9:16-19 (“And then like I 

said, for the new products, we’ll go ahead and just redo everything that we did, the reasonable 

searches that we did for the old products”); id. at 25:13-16.12 

ZTE analogizes Brazos’s motion to the Google cases (Opp. at 9), but elides that the Court 

found good cause there (i.e., Google’s discovery failures akin to ZTE’s here) and granted Brazos’s 

motion. See Ex. 10. Nor is there any reason to revisit the Court’s rejection of ZTE’s motion to 

stay. (Opp. at 10.) The Court had already declined to stay (Ex. 5, Sept. 19, 2022 Tr. at 28:19-

29:23) and the mere expansion of the scope of infringing products here does not change that 

conclusion.

III. CONCLUSION

For the foregoing reasons, Brazos’s Motion for Leave to Amend its Infringement 

Contentions should be granted in its entirety. 

 

10 For instance, Brazos accused the Velocity® 2 in the -491 Chart for the Axon 10 Pro, it is 

therefore not an addition.

11 For instance, Brazos removed all accused smartphones from its -488 Chart.

12 See also Alacritech, Inc. v. Centurylink, Inc., No. 2:16-CV-00693-RWS-RSP, 2017 WL 

3593787, at *2 (E.D. Tex. Aug. 20, 2017) (even where plaintiff was late in moving to amend, court 

allowed amendment where defendant “should not be surprised by the addition of these products” 

and court “prefers to resolve the infringement issue concerning as many of these additional 

instrumentalities as possible in one case rather than have [plaintiff] initiate a separate action”). 

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Dated: November 10, 2022 Respectfully submitted,

By: /s/ Jonathan K. Waldrop 

Jonathan K. Waldrop (CA Bar No. 297903) 

(Admitted in this District)

jwaldrop@kasowitz.com

Darcy L. Jones (CA Bar No. 309474) 

(Admitted in this District)

djones@kasowitz.com

Marcus A. Barber (CA Bar No. 307361)

(Admitted in this District)

mbarber@kasowitz.com

Heather S. Kim (CA Bar No. 277686)

(Admitted in this District)

hkim@kasowitz.com

John W. Downing (CA Bar No. 252850) 

(Admitted in this District)

jdowning@kasowitz.com

ThucMinh Nguyen (CA Bar No. 304382)

(Admitted in this District)

tnguyen@kasowitz.com

Chen Jia (CA Bar No. 281470)

(Admitted pro hac vice)

cjia@kasowitz.com

KASOWITZ BENSON TORRES LLP

333 Twin Dolphin Drive, Suite 200

Redwood Shores, California 94065

Telephone: (650) 453-5170

Facsimile: (650) 453-5171

Paul G. Williams (GA Bar No. 764925)

(Admitted in this District)

pwilliams@kasowitz.com

KASOWITZ BENSON TORRES LLP

1230 Peachtree Street N.E., Suite 2445

Atlanta, Georgia 30309

Telephone: (404) 260-6080

Facsimile: (404) 260-6081

Hershy Stern (NY Bar No. 4631024)

(Admitted pro hac vice)

hstern@kasowitz.com

Howard L. Bressler (NY Bar No. 2487379)

(Admitted pro hac vice)

hbressler@kasowitz.com

Joshua A. Whitehill (NY Bar No. 4766473)

(Admitted pro hac vice)

jwhitehill@kasowitz.com

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Lea Dartevelle Erhel (NY Bar No. 5172101)

ldartevelle@kasowitz.com

(Admitted pro hac vice)

Julianne Laporte (NY Bar No. 5547906)

(Admitted pro hac vice)

jlaporte@kasowitz.com

Noah P. Dorman (DC Bar No. 1779821)

(Admitted pro hac vice)

ndorman@kasowitz.com

KASOWITZ BENSON TORRES LLP

1633 Broadway

New York, NY 10019

Telephone: (212) 506-1700

Facsimile: (212) 506-1800

Mark D. Siegmund (TX Bar No. 24117055)

mark@swclaw.com

Craig D. Cherry (TX Bar No. 24012419)

craig@swclaw.com

Justin Allen (TX Bar No. 24081977)

justin@swclaw.com 

STECKLER WAYNE CHERRY & LOVE 

PLLC

8416 Old McGregor Road 

Waco, TX 76712

Telephone: (254) 651-3690

Facsimile: (254) 651-3689

Gregory Phillip Love (TX Bar No. 24013060)

greg@swclaw.com

STECKLER WAYNE CHERRY & LOVE 

PLLC

107 East Main Street

Henderson, TX 75652

Telephone: (903) 212-4444

Facsimile: (903) 392-2267

Attorneys for Plaintiff 

WSOU INVESTMENTS, LLC d/b/a

BRAZOS LICENSING AND

DEVELOPMENT

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was served or 

PUBLIC VERSION

 /s/ Jonathan K. Waldrop

CM/ECF System.

delivered electronically to all counsel of record, on this 17th day of November 2022 via the Court's 

Case 6:20-cv-00496-ADA-DTG Document 254 Filed 11/17/22 Page 11 of 11