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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, ZTE (USA) 

INC., AND ZTE (TX), INC. 

Defendants.

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CIVIL ACTION NO. 6:20-cv-487-ADA

CIVIL ACTION NO. 6:20-cv-488-ADA

CIVIL ACTION NO. 6:20-cv-489-ADA

CIVIL ACTION NO. 6:20-cv-490-ADA

CIVIL ACTION NO. 6:20-cv-491-ADA

CIVIL ACTION NO. 6:20-cv-492-ADA

CIVIL ACTION NO. 6:20-cv-493-ADA

CIVIL ACTION NO. 6:20-cv-494-ADA

CIVIL ACTION NO. 6:20-cv-495-ADA

CIVIL ACTION NO. 6:20-cv-496-ADA

CIVIL ACTION NO. 6:20-cv-497-ADA

JURY TRIAL DEMANDED

PLAINTIFF’S RESPONSE OPPOSING MOTION TO STAY

ZTE Corporation’s (“ZTC”), ZTE USA Inc.’s (“ZTA”), and ZTE TX, Inc.’s (“ZTX) 

(collectively “ZTE”) Motion to Stay pending ZTE’s motion to dismiss for improper venue should 

be denied. The lengthy stay ZTE seeks would harm WSOU by delaying WSOU’s right to a speedy 

trial. There is no need for a stay to avoid harm to ZTE. Nor is a stay necessary for judicial economy.

Rather, if ZTE cooperates, the parties can complete venue discovery and briefing before the May 

20-21 Markman hearings. A stay would only create an incentive for ZTE to drag out venue 

discovery. 

A. Legal Standard

A district court has the inherent power to control its own docket, including the power to

stay proceedings before it. See Clinton v. Jones, 520 U.S. 681, 706 (1997) (“The District Court

has broad discretion to stay proceedings as an incident to its power to control its own docket.”).

How to best manage the court's docket “calls for the exercise of judgment, which must weigh

competing interests and maintain an even balance.” Landis v. N. Am. Co., 299 U.S. 248, 254-55

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(1936); Gonzalez v. Infostream Grp., Inc., Case No. 2:14-CV-906, 2015 WL 12910770, at *1

(E.D. Tex. Mar. 2, 2015).

B. The stay factors relied on by ZTE do not support a stay.

In determining whether to issue a stay of proceedings, courts have considered: (1) whether 

the movant has made a showing of likelihood of success on the merits; (2) whether the movant has 

made a showing of irreparable injury if the stay is not granted; (3) whether granting of the stay 

would substantially harm the other parties; and (4) whether granting of the stay would serve the 

public interest. See U.S. v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983). These factors weigh 

against a stay.

1. ZTE has not shown a likelihood of success on the merits.

ZTE has not shown a likelihood of success on the merits. To support this factor, ZTE baldly 

insists “[n]o amount of venue discovery will change the facts” that ZTE USA and ZTE TX 

“severed all ties with WDTX.” -487 ECF 49 at 5-6. Of course, determining the truth of these 

allegations is the purpose of venue discovery. ZTE’s Motion to Stay should not be granted based 

on assumptions about what discovery will reveal. Avoiding such assumptions is the reason a stay 

pending resolution of a motion to dismiss is rarely appropriate. Hernandez v. Baylor Univ., 6-16-

CV-069 RP, 2016 WL 9450693, at *2 (W.D. Tex. Sept. 21, 2016) (“A stay of the type where a 

party asserts that dismissal is likely, would require the court to make a preliminary finding of the 

likelihood of success on the motion to dismiss . . . this would circumvent the procedures for 

resolution of such a motion.”). It is the same type of harm In re Apple warned against – making a 

determination based on the assumed outcome of a transfer motion. In re Apple, No. 20-135, slip 

op. at 5 (Fed. Cir. Nov. 9, 2020) (arguing that deciding the merits of a case before deciding a 

motion to transfer temporarily assumes there will be no transfer). 

2. The public interest factor weighs against granting a stay. 

ZTE cites In re Apple, arguing this Court should give ZTE’s motion to dismiss or transfer 

“top priority” so as to “not burden itself with the merits of the action” before deciding ZTE’s 

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motion to dismiss. Def.’s Mot. to Dismiss, -487 ECF No. 49 at 2 citing In re Apple, No. 20-135, 

slip op. at 5 (Fed. Cir. Nov. 9, 2020). 

Of course, this Court has given venue top priority by allowing discovery on venue before 

discovery on any other issue. Giving a venue motion “top priority” does not, however, mean 

discontinuing all other activities. Allowing the parties to move forward with invalidity contentions, 

claim construction positions, and claim construction briefing will promote judicial economy, not 

defeat it. None of these activities involve burdening this Court with the merits of the action before 

deciding venue. Instead, they ready this case for a prompt determination on the merits regardless 

of the outcome of ZTE’s venue motion. 

In an attempt to rely on In re Apple, ZTE erroneously assumes venue discovery cannot 

close until June 4, 2021, making it inevitable that venue briefing will not be completed until after 

the Markman hearings scheduled for May 20-21, 2021. -487 ECF No. 49 at 3. But June 4, 2021 is 

only the latest date by which venue discovery can be completed. Venue discovery and briefing can 

be completed earlier. WSOU served its venue discovery requests on December 17, 2020. The 

requests are not extensive. Rather, they consist of 27 specific requests for production and two

interrogatories. ZTE’s responses are due January 18, 2021. On December 17, 2020, WSOU also 

requested dates for depositions of ZTE’s venue declarants. WSOU requested that the depositions 

occur in late January or early February.1 Therefore, there is nothing preventing ZTE from 

cooperating in completing venue discovery and briefing well before the May 20-21 Markman 

hearings, and there is no reason to assume at this early stage that a stay is necessary to avoid having 

this court “burden itself with the merits of the action” before determining ZTE’s venue motion.

Granting a stay would only incentivize ZTE to drag out venue discovery. Instead, this Court 

should allow the parties to continue the important work of preparing for claim construction 

(something they must do regardless of the outcome of ZTE’s motion to dismiss) and leave in place 

deadlines that should motivate the parties to promptly address venue. 

1 ZTE has not provided dates yet, making it possible that the depositions occur later in February 

or in March. Either way, they should be complete before May.

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3. Denying ZTE’s motion to stay will cause no harm to ZTE.

ZTE will suffer no harm by serving invalidity contentions, exchanging claim construction 

terms, or briefing claim construction prior to a ruling on ZTE’s pending motions to dismiss or 

transfer to the NDTX. This is work ZTE (and WSOU) must complete wherever this case is 

pending. Indeed, invalidity contentions were due January 6, 2021. ZTE conferred with WSOU 

about its motion to stay on November 20, 2020 but delayed filing until December 30, 2020, belying 

ZTE’s argument that the purpose for its motion to stay is to avoid the burden of serving invalidity 

contentions.

There is no merit to ZTE’s claim that Markman briefing would need to be re-done if this 

case is transferred to the NDTX. ZTE knows this because the NDTX recently relied on Markman 

briefing filed by ZTE in the EDTX to issue a Markman ruling after the case was transferred. Fractus 

S.A. v. ZTE Corporation et al, No. 3:18-CV-02838 (N.D. Tex. March 15, 2019) (amending 

Markman order after transfer to the NDTX based on original Markman briefing filed in the EDTX). 

In a seven-page Markman ruling, Judge Kinkeade adopted all but one of Judge Gilstrap’s claim 

constructions. Id. The work done by the parties and Judge Gilstrap on Markman prior to transfer 

was no additional burden on the parties and eased the burden on Judge Kinkeade once the case 

was transferred.

There is also no reason to conclude that ZTE will be burdened by general fact discovery 

before a decision on its venue motion. This Court preserves party resources by delaying general 

fact discovery until two weeks after Markman. It should be possible to complete venue discovery 

and briefing long before fact discovery opens on May 24, 2021.2

4. A stay would harm WSOU by causing unnecessary delay and by incentivizing 

ZTE to delay venue discovery. 

As this Court has previously found, a patent holder has “an interest in the timely 

enforcement of its patent right.” Multimedia Content Management LLC v. DISH Network L.L.C., 

2 Even if fact discovery were open, participating in fact discovery would impose no additional 

burden on ZTE, as ZTE would be required to produce the same discovery (most likely before 

Markman) if this case were pending in the NDTX.

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No. 6:18-CV-00207-ADA, Dkt. 73 at 4 (W.D. Tex. May 30, 2019) (Albright, J.). A stay would 

harm ZTE by unnecessarily delaying a ruling on the merits. It would also give ZTE an incentive 

to drag out the venue discovery process in hopes of allowing IPR proceedings to advance ahead 

of litigation. On the same day ZTE filed its motion to stay, Unified Patents, LLC filed an IPR 

petition (IPR2021-00378) seeking to invalidate the ’960 Patent at issue in the -490 case. More 

IPRs may be on the way. A delay of litigation could harm WSOU by allowing the IPR to advance 

ahead of litigation. A stay would also tactically disadvantage WSOU, “as the longer this matter 

persists, the more likely it is that evidence and witnesses’ memories will disappear or deteriorate.”

Allure Energy, Inc. v. Nest Labs, Inc., No. 9:13-CV-102, 2015 WL 11110606, at *1 (E.D. Tex. 

Apr. 2, 2015). 

ZTE blames WSOU for “deliberately” prolonging venue briefing and argues WSOU is to 

blame for any harm caused by the delay of a stay. -487 ECF No. 49 at 7. First, there is ample time 

to complete venue discovery before the Markman hearings, making ZTE’s blame game irrelevant. 

There is no reason to delay the substantive work of exchanging claim construction positions while 

the parties complete venue discovery (particularly because, thanks to this Court’s procedures, the 

parties are not simultaneously burdened with fact discovery). 

Second, even if relevant, there is no merit to ZTE’s allegation that WSOU is to blame for 

the delay. A prompt resolution of venue has been WSOU’s goal all along. WSOU timely filed an 

Amended Complaint3 because ZTC claimed WSOU’s original complaints lacked sufficient 

allegations to support personal jurisdiction. WSOU did not use the Amended Complaint as a tactic 

to delay briefing on venue. Instead, despite the Amended Complaint, WSOU filed timely responses 

to ZTX’s and ZTA’s motions to dismiss or transfer for improper venue. As WSOU explained in 

prior briefing, WSOU was willing to move forward on ZTX’s and ZTA’s motions to dismiss 

despite the Amended Complaint. -487 ECF 43.1 at 2-3. It was ZTE, not WSOU, that insisted on 

3 For some reason, ZTE alleges WSOU’s Amended Complaint was untimely filed without leave. 

It is unclear how this allegation is relevant to ZTE’s motion. Regardless, it is incorrect. Under the 

scheduling order, the deadline to amend pleadings without leave is September 16, 2021.

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treating ZTX’s and ZTA’s original motions to dismiss for improper venue as moot. And it was 

ZTE, not WSOU, that requested an extension of ZTE’s deadline to file renewed motions to 

dismiss.4 As a courtesy, WSOU agreed. ZTE now claims this courtesy is proof that WSOU

“deliberately” prolonged the briefing schedule. 

ZTE likewise blames WSOU for seeking venue discovery. -487 ECF No. 49 at 3. WSOU’s 

original responses ZTE’s original motions requested venue discovery, but ZTE insisted that the 

original motions triggering venue discovery be treated as moot. WSOU promptly served venue 

discovery after receiving ZTE’s renewed motions.

C. Conclusion

The Court should deny ZTE’s Motion to Stay because ZTE has not shown a likelihood of 

success on the merits and a stay would only prejudice WSOU, as ZTE’s affiliated entity has already 

filed an IPR against an asserted patent in this case. Moreover, granting such a stay is an act against 

judicial economy. 

4 Similarly, WSOU timely filed responses to ZTE’s original § 1404 motions. It was ZTE, not 

WSOU, that caused delay (and unnecessary briefing) by baselessly insisting the § 1404 motions 

were mooted by WSOU’s Amended Complaint. ZTE then filed untimely renewed § 1404 motions, 

causing WSOU the unnecessary work of preparing a motion to strike (which was never filed 

because the Court struck ZTE’s untimely renewed § 1404 motions sua sponte).

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Dated: January 6, 2021 Respectfully submitted,

/s/ Ryan Loveless

James L. Etheridge

Texas State Bar No. 24059147

Ryan S. Loveless

Texas State Bar No. 24036997

Brett A. Mangrum

Texas State Bar No. 24065671

Travis Lee Richins

Texas State Bar No. 24061296

ETHERIDGE LAW GROUP, PLLC

2600 E. Southlake Blvd., Suite 120 / 324

Southlake, Texas 76092

Telephone: (817) 470-7249

Facsimile: (817) 887-5950

Jim@EtheridgeLaw.com

Ryan@EtheridgeLaw.com

Brett@EtheridgeLaw.com

Travis@EtheridgeLaw.com

Mark D. Siegmund

State Bar No. 24117055

mark@waltfairpllc.com

Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive

Waco, Texas 76710

Telephone: (254) 772-6400

Facsimile: (254) 772-6432

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I certify that on January 6, 2021 a true and correct copy of the foregoing document was 

served upon all counsel of record via the Court’s electronic delivery system under this Court’s 

Local Rules.

/s/ Travis Richins

Travis Richins

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