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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, 

Defendant.

Case No.: 6:20-cv-00487-ADA

Case No.: 6:20-cv-00488-ADA

Case No.: 6:20-cv-00489-ADA

Case No.: 6:20-cv-00490-ADA

Case No.: 6:20-cv-00491-ADA

Case No.: 6:20-cv-00492-ADA

Case No.: 6:20-cv-00493-ADA

Case No.: 6:20-cv-00494-ADA

Case No.: 6:20-cv-00495-ADA

Case No.: 6:20-cv-00496-ADA

Case No.: 6:20-cv-00497-ADA

JURY TRIAL DEMANDED

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS 

FOR LACK OF SUBJECT MATTER JURISDICTION UNDER 

FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1) 

Public Version

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TABLE OF CONTENTS 

Page 

I. INTRODUCTION ............................................................................................................. 1

II. FACTUAL BACKGROUND ............................................................................................ 5

A. Brazos Is The Rightful Owner Of The ’960, ’905, ’060, ’036, ’534, ’839, 

’929, ’240, ’071, ’232 And ’505 Patents ............................................................... 5

B.

. 6

C.

. 8

D.

.. 10

E. ZTE Waited Two Years Before (1) Claiming Lack Of Subject Matter 

Jurisdiction (Not As A Matter Of Law But As A Matter Of Fact) Based 

On Purportedly Insufficient Assignment Records That Have Been Publicly 

Available For Many Years; And (2) Moving To Dismiss These Cases Due 

To Brazos’s Purported Lack Of Past Damages Rights ........................................ 11

III. ARGUMENT ................................................................................................................... 12

A. The Court Has Subject Matter Jurisdiction Because The Cases Against 

ZTE Were Filed Under The Patent Act And Brazos Properly Alleged 

Ownership And Right To Recover All Damages, Including Past Damages ........ 12

B. ZTE’s 12(b)(1) Motion, Seeking To Dismiss The Cases For Lack Of 

Subject Matter Jurisdiction But Failing To Argue That Brazos’s 

Complaint Allegations Are Insufficient As A Matter Of Law, Is 

Procedurally Defective......................................................................................... 14

C.

 15

1.

 15

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2.

 20

D.

 23

E.

. 25

F. Brazos Is Not Withholding Any Discoverable Documents, And ZTE’s 

Discovery Disputes Are Completely Irrelevant To This Motion And Have 

Been Repeatedly Denied By This Court .............................................................. 27

G. Because The Court Warned That ZTE Would Be Sanctioned For Its 

Repeated Discovery Requests But ZTE Nevertheless Requested The Same 

Documents In The Baseless Motion, Brazos Is Entitled To All Attorney’s 

Fees And Costs Incurred In Opposing The Motion ............................................. 29

IV. CONCLUSION ................................................................................................................ 30

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Bd. of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 

583 F.3d 832 (Fed. Cir. 2009), aff’d, 563 U.S. 776 (2011) .....................................................22

Beal Sav. Bank v. Sommer, 

8 N.Y.3d 318 (1st Dep’t 2007) ................................................................................................16

Born v. Schrenkeisen, 

110 N.Y. 55 (N.Y. 1888) .........................................................................................................26

Brazos Licensing and Development, 

Case No. 3:21-cv-02128-E, Dkt. 50 (N.D. Tex.) .....................................................................30

BSC Assocs., LLC v. Leidos, Inc., 

91 F. Supp. 3d 319 (N.D.N.Y. 2015) .......................................................................................24

C.R. Daniels, Inc. v. Naztec Int’l Grp., LLC, 

2012 WL 1268623 (D. Md. Apr. 13, 2012) .............................................................................18

Cara Assocs., L.L.C. v. Milstein, 

140 A.D.3d 657 (1st Dep’t 2016) ............................................................................................17

Citibank, N.A. v. Tele/Res., Inc., 

724 F.2d 266 (2d Cir. 1983).....................................................................................................25

Corhill Corp. v S.D. Plants, Inc., 

9 N.Y.2d 595 (N.Y. 1961) .......................................................................................................17

DDB Techs., LLC v. MLB Advanced Media, LP, 

517 F.3d 1284 (Fed. Cir. 2008)..........................................................................................18, 22

Fed. Ins. Co. v. Ams. Ins. Co., 

258 A.D.2d 39 (1st Dep’t 1999) ..............................................................................................20

Flast v. Cohen, 

392 U.S. 83 (N.Y. 1968) ..........................................................................................................12

Gellman v. Telular Corp., 

2010 WL 5173213 (E.D. Tex. Dec. 14, 2010) .........................................................................22

Greenfield v. Philles Recs., Inc., 

98 N.Y.2d 562 (N.Y. 2002) ...............................................................................................16, 21

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Harris v. Uhlendorf, 

24 N.Y.2d 463 (N.Y. 1969) .....................................................................................................26

Johnson v. Johnson, 

385 F.3d 503 (5th Cir. 2004) ...................................................................................................14

Kenyon & Kenyon LLP v. Sightsound Techs., LLC, 

No. 650795/2014, 2021 WL 1856980 (Sup. Ct. N.Y. Cty. May 10, 2021) .............................19

Lawyers’ Fund for Client Prot. of State of N.Y. v. Bank Leumi Tr. Co. of N.Y., 

727 N.E.2d 563 (N.Y. 2000) ..............................................................................................16, 21

Lexmark Int’l, Inc. v. Static Control Components, Inc., 

572 U.S. 118 (2014) ...........................................................................................................12, 13

Lipper Holdings, LLC v. Trident Holdings, LLC, 

1 A.D.3d 170 (1st Dep’t 2003) ..........................................................................................17, 21

Lone Star Silicon Innovations LLC v. Nanya Tech. Corp., 

925 F.3d 1225 (Fed. Cir. 2019)......................................................................................2, 12, 13

Muzak Corp. v. Hotel Taft Corp., 

1 N.Y.2d 42 (N.Y. 1956) ...................................................................................................17, 22

N. Telecom Ltd. v. Samsung Elecs. Co., Ltd., 

215 F.3d 1281 (Fed. Cir. 2000)................................................................................................15

Nova Cas. v. Harleysville Worchester Ins. Co., 

146 A.D.3d 428 (1st Dep’t 2017) ......................................................................................17, 21

Ramming v. United States, 

281 F.3d 158 (5th Cir. 2001) ...................................................................................................13

Roc Nation LLC v. HCC Int’l Ins. Co., PLC, 

523 F. Supp. 3d 539 (S.D.N.Y. 2021)......................................................................................26

Schwendimann v. Arkwright Advanced Coating, Inc., 

959 F.3d 1065 (Fed. Cir. 2020)......................................................................................2, 13, 14

Speedplay, Inc. v. Bebop, Inc., 

211 F.3d 1245 (Fed. Cir. 2000)..........................................................................................18, 22

Univ. of S. Fla. Research Found., Inc. v. Fujifilm Med. Sys., 

19 F.4th 1315 (Fed. Cir. 2021) ................................................................................................13

W.W.W. Assoc. v Giancontieri, 

77 N.Y.2d 157 (N.Y. 1990) .....................................................................................................16

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Matter of Westmoreland Coal Co. v Entech, Inc., 

100 N.Y.2d 352 (N.Y. 2003) ...................................................................................................17

Wheelabrator Techs. of N. Am., Inc. v. Fin. Sec. Assurance of Okla., Inc., 

No. 88 Civ. 7623 (LMM), 1990 WL 180552 (S.D.N.Y. Nov. 15, 1990) ................................25

Young v. Hosemann, 

598 F.3d 184 (5th Cir. 2010) ...................................................................................................14

Statutes 

35 U.S.C. § 281 ..............................................................................................................................13

35 U.S.C. § 285 ..............................................................................................................................29

Rules 

Fed. R. Civ. P. 56(c) ......................................................................................................................15

Fed. R. Civ. P. 12(b)(1)........................................................................................................1, 11, 13

Fed. R. Civ. P. 12(b)(6)............................................................................................................14, 15

Fed. R. Civ. P. 12(d) ......................................................................................................................15

Fed. R. Civ. P. 33(d) ......................................................................................................................27

Fed. R. Civ. P. 37(d) ......................................................................................................................27

Fed. R. Civ. P. 45 ...........................................................................................................................30

Fed. R. Civ. P. 56 ...........................................................................................................................15

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Plaintiff WSOU Investments, LLC d/b/a Brazos Licensing and Development (“Plaintiff” 

or “Brazos”) files this opposition to Defendant ZTE Corporation’s (“ZTE”) motion to dismiss for 

lack of subject matter jurisdiction under FRCP 12(b)(1) (“Motion” or “Mot.”).1

I. INTRODUCTION 

ZTE’s motion to dismiss these cases for lack of subject matter jurisdiction is baseless and 

makes zero sense. 

 ZTE plainly ignores Brazos’s 

complaint allegations establishing subject matter jurisdiction as a matter of law and instead attacks 

the cases on the facts. But this is not a motion for summary judgment. And even if it is, ZTE 

squarely fails to show any undisputed issues of material fact. 

The Court should see through ZTE’s transparent attempt to delay Brazos’s recovery and 

exhaust its resources by forcing it to respond to meritless arguments raised for the first time more 

than two years after the cases were filed and based on documents that have been publicly available 

for many years. The Motion should thus be denied for the following independent reasons: 

First, the Court has subject matter jurisdiction over these cases. Brazos easily meets the 

low standard for establishing subject matter jurisdiction by alleging that: (i) this is a case or 

controversy under the Patent Act; (ii) Brazos was the patent owner when the cases were filed in 

June 2020; (iii) ZTE infringed Brazos’s patents; (iv) Brazos has been damaged by ZTE’s 

infringement; and (v) Brazos has the right to all causes of action and all damages related to the 

 

1

 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the 

Motion. Unless otherwise noted, all emphasis in this opposition brief has been added. 

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asserted patents. Compl., ¶ 12.2 Because ZTE does not dispute that Brazos made those allegations, 

the inquiry ends here and the Motion should be denied. 

ZTE misdirects the Court by challenging the sufficiency of the patent assignment to Brazos 

and Brazos’s right to recover past damages. But the Federal Circuit already rejected these very 

arguments. Specifically, the Federal Circuit held that whether a plaintiff (like Brazos) was 

properly assigned the asserted patents or has exclusionary patent rights does not implicate subject 

matter jurisdiction. See Schwendimann v. Arkwright Advanced Coating, Inc., 959 F.3d 1065, 1071 

(Fed. Cir. 2020). And the Federal Circuit similarly held that whether the assignee “possesses all 

substantial rights in a patent [like the right to past damages] does not implicate standing or subjectmatter jurisdiction.” Lone Star Silicon Innovations LLC v. Nanya Tech. Corp., 925 F.3d 1225, 

1235-36 (Fed. Cir. 2019). 

Second, because ZTE’s argument that Brazos was not assigned the patents or related rights 

does not implicate subject matter jurisdiction, ZTE’s Motion is procedurally defective and should 

be denied on this basis alone. 

Third, if the Court is inclined to treat this Motion as one under 12(b)(6), ZTE still loses 

because the Court has to accept the complaint’s well-pleaded facts as true and view them in 

the light most favorable to Brazos, and the record is clear that 

.

3

 

 

2

 “Compl.” refers to the sample Complaint in Case No.: 6:22-cv-00487-ADA, which is cited herein 

for illustrative purposes. 

3

 “Ex. __” refers to the Exhibits to the Declaration of Jonathan K. Waldrop filed concurrently 

herewith. 

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. 

 

Sixth, contrary to ZTE’s assertion, Brazos is not withholding any discoverable documents, 

and ZTE’s discovery requests are completely irrelevant to the Motion and have been repeatedly

denied by the Court. 

Finally, because the Court already stated that ZTE would be sanctioned for its repeated 

discovery requests but ZTE nevertheless requested the same documents in the baseless Motion, 

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Brazos is entitled to seek all attorney’s fees and costs incurred in opposing the Motion and 

responding to the same discovery requests that the Court repeatedly denied. 

Accordingly, the Motion should be denied, and Brazos should be awarded attorney’s fees 

and costs incurred in opposing the Motion. 

II. FACTUAL BACKGROUND 

A. Brazos Is The Rightful Owner Of The ’960, ’905, ’060, ’036, ’534, ’839, ’929, 

’240, ’071, ’232 And ’505 Patents 

Brazos is the owner of all rights, title and interest in the following U.S. patents asserted in 

eleven individual actions: U.S. Patent Nos. (i) 8,179,960 (“the ’960 Patent”) in Case No.: 6:20-

cv-00490-ADA; (ii) 8,730,905 (“the ’905 Patent”) in Case No.: 6:20-cv-00491-ADA; (iii) 

9,294,060 (“the ’060 Patent”) in Case No.: 6:20-cv-00493-ADA; (iv) 9,185,036 (“the ’036 

Patent”) in Case No.: 6:20-cv-00494-ADA; (v) 7,742,534 (“the ’534 Patent”) in Case No.: 6:20-

cv-00496-ADA; (vi) 8,451,839 (“the ’839 Patent”) in Case No.: 6:20-cv-00487-ADA; (vii) 

7,489,929 (“the ’929 Patent”) in Case No.: 6:20-cv-00488-ADA; (viii) 7,487,240 (“the ’240 

Patent”) in Case No.: 6:20-cv-00489-ADA; (ix) 8,147,071 (“the ’071 Patent”) in Case No.: 6:20-

cv-00492-ADA; (x) 9,258,232 (“the ’232 Patent”) in Case No.: 6:20-cv-00495-ADA; and (xi) 

7,203,505 (“the ’505 Patent”) in Case No.: 6:20-cv-00497-ADA. 

On June 3, 2020, Brazos filed the aforementioned cases against ZTE. For more than two 

years ZTE actively litigated these cases and never challenged Brazos’s standing despite the fact 

that the USPTO assignment records (on which ZTE now relies to claim purported defective 

assignments) have been publicly available long before the commencement of these cases. 

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B.

 

 

 

 

4

 

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C.

 

 

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D.

 

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E. ZTE Waited Two Years Before (1) Claiming Lack Of Subject Matter 

Jurisdiction (Not As A Matter Of Law But As A Matter Of Fact) Based On 

Purportedly Insufficient Assignment Records That Have Been Publicly 

Available For Many Years; And (2) Moving To Dismiss These Cases Due To 

Brazos’s Purported Lack Of Past Damages Rights 

On June 3, 2020, Brazos filed eleven separate actions against ZTE for infringing the ’960, 

’905, ’060, ’036, ’534, ’839, ’929, ’240, ’071, ’232, ’505 Patents, respectively. See, e.g., Compl. 

More than two years later, on July 25, 2022, ZTE filed a Rule 12(b)(1) motions for lack of 

subject matter jurisdiction seeking to dismiss the eleven actions – not as a matter of law but as a 

matter of fact – arguing for the first time that the assignment to Brazos was purportedly 

insufficient. ZTE made this argument in bad faith 

 

 

 

 

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)

III. ARGUMENT 

A. The Court Has Subject Matter Jurisdiction Because The Cases Against ZTE 

Were Filed Under The Patent Act And Brazos Properly Alleged Ownership 

And Right To Recover All Damages, Including Past Damages 

There is no question that the Court has subject matter jurisdiction over these patent 

infringement cases. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 

n.4 (2014) (As long as a plaintiff alleges a case or controversy under the Patent Act, like Brazos 

here, the court has both statutory and constitutional authority to adjudicate the matter.); Lone Star 

Silicon Innovations LLC v. Nanya Tech.Corp., 925 F.3d 1225, 1235 (Fed. Cir. 2019) (quoting Flast 

v. Cohen, 392 U.S. 83, 99 (N.Y. 1968)) (The “fundamental aspect of standing is that it focuses on 

the party seeking to get his complaint before a federal court [like Brazos here], and not on the 

issues he wishes to have adjudicated.”). 

ZTE argues that Brazos lacks constitutional standing because it was not properly assigned 

the asserted patents and thus has no exclusionary or damages rights. Mot. at 10-15. ZTE is wrong. 

The “absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter 

jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate the case.” Lexmark, 

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572 U.S. at 128 n.4 (2014). And the binding law5 is clear that the question of what rights were 

assigned to the patentee does not implicate Article III standing. 

Indeed, both the Federal Circuit and the U.S. Supreme Court confirmed that ZTE’s 

argument challenging the sufficiency of the assignment to Brazos does not implicate subject matter 

jurisdiction: 

In Lone Star, we made clear that whether one qualifies as a patentee under 35 

U.S.C. § 281 is a statutory prerequisite to the right to relief in a patent infringement 

action, but does not implicate the district court’s subject matter jurisdiction. There, 

we recognized that intervening Supreme Court precedent made clear that our 

earlier decisions treating the prerequisites of the Patent Act as jurisdictional 

were wrong. We expressly held that “[w]e therefore firmly bring ourselves into 

accord with Lexmark [Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 

134 S.Ct. 1377, 188 L.Ed.2d 392 (2014)] and our sister circuits by concluding that 

whether a party possesses all substantial rights in a patent does not implicate 

standing or subject-matter jurisdiction.” Lone Star, 925 F.3d at 1235–36. As long 

as a plaintiff alleges facts that support an arguable case or controversy under 

the Patent Act, the court has both the statutory and constitutional authority to 

adjudicate the matter. Id. at 1235 (citing Lexmark Int'l, Inc. v. Static Control 

Components, Inc., 572 U.S. 118, 128 n.4, 134 S.Ct. 1377, 188 L.Ed.2d 392 

(2014)). Because Ms. Schwendimann’s Complaint contained such allegations—

that she is the owner by assignment of the ’845 patent and Appellants infringed that 

patent—there is no “standing” issue to be decided in this appeal. 

Schwendimann v. Arkwright Advanced Coating, Inc., 959 F.3d 1065, 1071 (Fed. Cir. 2020). 6

 

5

 The Federal Circuit applies regional circuit law when reviewing a dismissal of a complaint for 

lack of standing unless the issue is unique to patent law and therefore exclusively assigned to the 

Federal Circuit. See Univ. of S. Fla. Research Found., Inc. v. Fujifilm Med. Sys., 19 F.4th 1315, 

1323-24 (Fed. Cir. 2021). 

6

 ZTE argues that Brazos has the burden to establish subject matter jurisdiction. Mot. at 7-10. 

But ZTE does not dispute that, according to the Federal Circuit, to meet this low burden, Brazos 

only needs to allege that it is the patentee and that ZTE damaged Brazos by infringing the asserted 

patents (which Brazos undoubtedly did here). And ZTE does not dispute that, once Brazos shows 

sufficient allegations per Schwendimann, the burden of proof then shifts to ZTE to clearly show 

that Brazos “cannot prove any set of facts in support of [its] claim that would entitle [it] to relief.” 

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Indeed, the binding law makes it 

clear that “[wh]hen a federal claim appears on the face of the complaint, dismissal for lack of 

subject matter jurisdiction is only proper in the case of a frivolous or insubstantial claim, i.e., a 

claim which has no plausible foundation or which is clearly foreclosed by a prior Supreme Court 

decision,” and that such “refusal to treat indirect attacks on the merits as Rule 12(b)(1) motions 

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Here, just like the plaintiff in Schwendimann, Brazos established subject matter jurisdiction 

by alleging that: (i) this is a case or controversy under the Patent Act; (ii) Brazos was the patent 

owner when the cases were filed in June 2020; (iii) ZTE infringed Brazos’s patents; (iv) Brazos 

has been damaged by ZTE’s infringement; and (v) Brazos has the right to all causes of action and 

all damages related to the asserted patents. Compl., ¶ 12. 

ZTE does not dispute that Brazos made those allegations. As such, the inquiry ends here, 

and the Motion should be denied. 

B. ZTE’s 12(b)(1) Motion, Seeking To Dismiss The Cases For Lack Of Subject 

Matter Jurisdiction But Failing To Argue That Brazos’s Complaint 

Allegations Are Insufficient As A Matter Of Law, Is Procedurally Defective 

Because ZTE fails to dispute the sufficiency of Brazos’s allegations and ZTE’s argument 

that Brazos does not have exclusionary rights or past damages does not implicate subject matter 

jurisdiction, ZTE’s 12(b)(1) motion to dismiss the case for lack of subject matter jurisdiction is 

procedurally defective and must be denied on this basis alone. At best, ZTE could have filed a 

12(b)(6) motion to dismiss. But there is no reason for the Court to treat sua sponte ZTE’s Motion 

as a 12(b)(6) motion because such motion would fail for the reasons in Section III.C, infra., 

especially since the Court must “accept the complaint’s well-pleaded facts as true and view them 

in the light most favorable to the plaintiff.” Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 

2004). 

Further, because ZTE improperly relies on external evidence, including exhibits outside of 

the four corners of the relevant contracts, the Motion cannot simply be converted to a Rule 12(b)(6) 

 

provides, moreover, a greater level of protection to the plaintiff who in truth is facing a challenge 

to the validity of his claim[.]” Young v. Hosemann, 598 F.3d 184, 188 (5th Cir. 2010) (internal 

quotation marks and citation omitted). ZTE has plainly failed to meet this strict standard. 

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motion to dismiss. Nor does Rule 12(d)7 provide means for converting ZTE’s Motion into one for 

summary judgment. 

Even if the Motion is converted into a summary judgment motion, ZTE’s still loses because 

there are many disputed issues of material fact arising from the external documents submitted by 

the parties 

 See N. Telecom Ltd. v. Samsung Elecs. Co., Ltd., 215 F.3d 1281, 

1286 (Fed. Cir. 2000) (citing Fed. R. Civ. P. 56(c)). 

Accordingly, ZTE’s Motion should be denied as procedurally defective. 

C.

 

1.

Even if the Court is inclined to treat the Motion as one under 12(b)(6), ZTE still loses 

because the record is clear 

 And ZTE’s assertion that the relevant documents are “silent to 

the right to sue for past infringement” (Mot. at 19) is plainly false. 

. 

 

7

 FRCP 12(d) authorizes the Court to convert only a “motion under Rule 12(b)(6) or 12(c)” into a 

Rule 56 motion for summary judgment. As such, a 12(b) motion is not the proper vehicle for the 

adjudication of this issue. 

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And the binding New York law9 makes it abundantly clear that contracts and their 

schedules/exhibits should be read together 

as one document for the purposes of contract interpretation. See Greenfield v. Philles Recs., Inc., 

98 N.Y.2d 562, 572 (N.Y. 2002) (A contract should be “read as a whole to determine its purpose 

and intent.”) (quoting W.W.W. Assoc. v Giancontieri, 77 N.Y.2d 157, 162 (N.Y. 1990)); Lawyers’ 

Fund for Client Prot. of State of N.Y. v. Bank Leumi Tr. Co. of N.Y., 727 N.E.2d 563, 566 (N.Y. 

2000) (Courts should interpret an agreement “as a whole” and read the document “in its entirety” 

instead of focusing exclusively on the provision in question.); Beal Sav. Bank v. Sommer, 8 N.Y.3d 

318, 324-25 (1st Dep’t 2007) (A contract should be “read as a whole, and every part will 

 

8

 

 

9

 

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be interpreted with reference to the whole [].”) (quoting Matter of Westmoreland Coal Co. v 

Entech, Inc., 100 N.Y.2d 352, 358 (N.Y. 2003)). 

 See 

Lipper Holdings, LLC v. Trident Holdings, LLC, 1 A.D.3d 170, 171 (1st Dep’t 2003) 

(“A contract should not be interpreted to produce a result that is absurd, commercially 

unreasonable or contrary to the reasonable expectations of the parties.”) (internal citations 

omitted); Nova Cas. v. Harleysville Worchester Ins. Co., 146 A.D.3d 428, 428 (1st Dep’t 2017) 

(“We reject this interpretation, because it renders a portion of the contract meaningless and fails 

to read all contractual clauses together contextually.”); Cara Assocs., L.L.C. v. Milstein, 140 

A.D.3d 657, 658 (1st Dep’t 2016) (A cardinal rule of construction is that “a court should not adopt 

an interpretation which will operate to leave a provision of a contract without force and effect.”) 

(quoting Corhill Corp. v S.D. Plants, Inc., 9 N.Y.2d 595, 599 (N.Y. 1961)). 

 See Muzak Corp. v. Hotel Taft Corp., 

1 N.Y.2d 42, 46-47 (N.Y. 1956) (“Even if there was an inconsistency between a specific provision 

and a general provision of a contract [] the specific provision controls.”). 

 

 First, the Federal Circuit already rejected this very argument, holding that an executed 

assignment pursuant to the express language of an agreement does not affect the conclusion that 

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the agreement itself assigned the referenced rights. See DDB Techs., LLC v. MLB Advanced 

Media, LP, 517 F.3d 1284, 1290 (Fed. Cir. 2008) (rejecting the argument that an assignment was 

the operative document and reasoning that nothing in the assignment conflicted with the 

assignment provision in the agreement); see also C.R. Daniels, Inc. v. Naztec Int’l Grp., LLC, 2012 

WL 1268623, at *15 (D. Md. Apr. 13, 2012) (DDB Technologies “ma[kes] clear that the fact of a 

later execution or recordation of ‘assignment’ does not govern whether, based on a prior document, 

there was an earlier transfer of legal title.”). 

 

 See 

DDB Techs., LLC v. MLB Advanced Media, LP, 517 F.3d 1284, 1290 (Fed. Cir. 2008) (contract 

that “agrees to and does hereby grant and assign” was an express assignment rather than a promise 

to assign in the future); see also Speedplay, Inc. v. Bebop, Inc., 211 F.3d 1245, 1253 (Fed. Cir. 

2000) (contract providing that “[employee] hereby conveys, transfers and assigns to [employer]” 

was an express assignment rather than a promise to assign in the future). 

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 See Kenyon & Kenyon LLP v. 

Sightsound Techs., LLC, No. 650795/2014, 2021 WL 1856980, at *10 (Sup. Ct. N.Y. Cty. May 

10, 2021) (Where extrinsic evidence is introduced to aid in construction, “sworn affidavits by both 

original parties to a contract and those parties’ conduct after 

the contract was formed 

] are significant evidence of the parties’ 

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intent.”) (quoting N.Y. Pattern Jury Instr.—Civil 4:1, Contracts—Elements); see also Fed. Ins. 

Co. v. Ams. Ins. Co., 258 A.D.2d 39, 44-45 (1st Dep’t 1999) (“[T]here could be no more 

compelling evidence of intent than the sworn testimony and affidavits of both parties to the 

contract.”). 

2.

 

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10

 

 

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1

 

11

 

 See Gellman v. Telular Corp., 2010 WL 5173213, 

at *4 (E.D. Tex. Dec. 14, 2010) (contract contemplated assigning rights in “future inventions” and 

referenced only “a promise to make future assignments”); Bd. of Trustees of Leland Stanford 

Junior Univ. v. Roche Molecular Sys., Inc., 583 F.3d 832, 841–42 (Fed. Cir. 2009), aff’d, 563 U.S. 

776 (2011) (contract contained only “agree to assign” in the future language). 

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Finally, ZTE admits that Schedules B1-B3 have been available on the USPTO’s public 

website since 2017 (more than two years before the cases were filed in June 2020). Mot. at 20; 

see also Table of Exhibits showing Patent Assignment History, supra. Because ZTE has no 

legitimate excuse for its blatant failure to file a timely 12(b)(6) motion to dismiss Brazos’s past 

damages claim and because a 12(b)(6) motion would only potentially exclude past damages (and 

not dispose of the case which is ZTE’s goal here), ZTE instead strategically filed this Motion under 

12(b)(1) claiming that the Court does not have subject matter jurisdiction. But as demonstrated 

above, ZTE’s subject matter jurisdiction argument is unfounded and nonsensical. The Court 

should thus see through ZTE’s gamesmanship and deny the Motion. 

D.

t 

 

 

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In addition, Brazos had “more than negligible” other business activities unrelated to the 

assertion of patents, including helping companies unlock their patent portfolio value by efficiently 

employing patent assets to support debt financing as well as leveraging a technology platform for 

patent analysis to help private equity firms, investment bankers, and hedge fund managers develop 

data-driven structured financial products. Id., ¶ 8. 

 

 Under New York law, “[w]ith limited exception, contractual provisions 

prohibiting assignments are treated as personal covenants,” and “[a]n assignment that violates a 

personal covenant prohibiting assignments gives rise to an action for damages against the assignor, 

but is enforceable.” BSC Assocs., LLC v. Leidos, Inc., 91 F. Supp. 3d 319, 323-24 (N.D.N.Y. 

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2015) (quoting Citibank, N.A. v. Tele/Res., Inc., 724 F.2d 266, 268 (2d Cir. 1983)). For an antiassignment clause to deprive an assignee of its rights, the clause “must specifically use language 

to the effect that the assignee receives no rights from an improper assignment or that such 

assignment is void.” Wheelabrator Techs. of N. Am., Inc. v. Fin. Sec. Assurance of Okla., Inc., 

No. 88 Civ. 7623 (LMM), 1990 WL 180552, at *3 (S.D.N.Y. Nov. 15, 1990). 

. 

 

E.

 

 

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I 

 

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F. Brazos Is Not Withholding Any Discoverable Documents, And ZTE’s 

Discovery Disputes Are Completely Irrelevant To This Motion And Have Been 

Repeatedly Denied By This Court 

ZTE’s request for Rule 37(d) sanctions based on purported “withholding of production” 

(Mot. at 20-25) is baseless and must be denied. As Brazos has informed ZTE and represented to 

the Court, Brazos is not withholding any discoverable documents. 

Contrary to ZTE’s assertion (Mot. at 23), Brazos produced all responsive and discoverable 

documents last year, and promptly supplemented and completed its production with amendments 

to the operating agreement once it was brought to Brazos’s attention that those documents were 

inadvertently left out of previous productions. As ZTE’s motion makes it clear, Brazos responded 

to ZTE’s Interrogatories 10 and 12 by identifying responsive documents by bates numbers 

pursuant to Rule 33(d). Brazos believed these documents had already been produced and only 

realized that they were inadvertently omitted from previous productions by Brazos’s previous 

counsel after-the-fact. See ZTE’s Ex. 29. As Brazos has represented to the Court, Brazos’s 

document production with respect to its corporate structure is complete. Ex. P, 3/3/22 Hr’g Tr. at 

12:2-15. 

In its Motion, ZTE again requests documents (e.g., loan and security agreements, 

financials, and prior witness transcripts, statements, or testimony) that this Court has previously 

denied several times. 

 Ex. P, 3/3/22 Hr’g Tr. at 14:4-15:21 (denying ZTE’s request for financials because Brazos 

would not be a party to the hypothetical negotiation); 

 Dkt. 185 (“Defendant’s request for a Court Order filed on the docket memorializing the 

December 6, 2021 email Court Order compelling Plaintiff’s production of documents (1) 

responsive to ZTE’s 70 Requests for Production, and (2) from sister WDTX cases is DENIED. 

The Court, having further reconsidered its December 6th email Order regarding the above, and 

it is now DENIED, including Defendant’s request for the following categories of documents... 

Plaintiff’s financials.”); 

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 Dkt. 203 (“Plaintiff is not required to produce internal financial statements that are not filed 

with a governmental entity, nor is Plaintiff required to provide 30(b)(6) testimony regarding 

internal financial statements that are not filed with a governmental entity.”); 

 Ex. Q, 4/27/22 Email Order (“The Court considered the disputes in the April 26, 2022 

chart. The Court DENIES all of ZTE’s requested relief.”); Ex. R, 4/26/22 Discovery Dispute 

Chart (“Relief sought: Order Brazos to immediately supplement its production to include all 

discovery produced in any WSOU case—including its patent assignment Loan Agreements 

(and associated security agreement documents”); 

 WSOU Investments, LLC d/b/a Brazos Licensing and Development v. Microsoft Corp., 6:20-

cv-00454-ADA, Dkt. 104, 11/2/21 Order, p. 3 (“Microsoft’s request to compel WSOU to

produce the underlying Loan Agreement and full Security Agreement for both the BP 

Funding Trust and OT WSOU Terrier Holdings security interests is DENIED”); 

 Dkt. 204 (denying consolidated defendants’ (including ZTE) request for production of loan 

and security agreements and concluding “[a]fter due consideration of the parties’ briefs and 

arguments at the March 21, 2022 hearing, the Court denied the motions brought by Google in 

Google LLC v. Terrier SSC, LLC, 6:21-mc-1269, and Google LLC v. BP Funding Trust, 6:21-

mc-1270”); 

 Dkt. 203 (“Based on the arguments raised at the hearing, based on Court’s earlier rulings in 

this case, and based on the Court’s rulings in other pending cases involving the same Plaintiff 

on similar discovery disputes, the Court hereby ORDERS the following... Defendant’s request 

for 30(b)(6) testimony for the following topics is DENIED... No. 62 Transcripts, witness 

statements, and video records of testimony given in any proceedings by anyone Plaintiff 

expects to call as a witness in these actions.”); 

 WSOU Investments, LLC d/b/a Brazos Licensing and Development v. Dell Inc., et al., 6:20-cv00473-ADA, 4/20/22 Order, Dkt. 183 (“Defendants’ request to compel Plaintiff to produce 

deposition transcripts and exhibits related to Plaintiff’s witnesses’ testimony and hearing 

transcripts (from the similar cases involving the Other Action Defendants, as defined in 

Defendants’ Requests for Production) in response to Request for Production Nos. 89 and 91 is 

DENIED.”); 

 Ex. S, WSOU Investments, LLC d/b/a Brazos Licensing and Development v. HPE Discovery 

Dispute (“Relief Requested: HPE respectfully asks the Court to order WSOU to produce the 

deposition transcripts and exhibits for any depositions of WSOU’s fact witnesses (officers, 

employees, contractors or other individuals associated with WSOU) that have occurred in the 

other cases in which WSOU has asserted patent infringement against companies other than 

HPE.”); 

 Ex. T, 3/7/22 Email Order (“The Court does not find that a hearing is necessary. After review 

of the parties’ positions regarding the instant dispute, the Court DENIES HPE’s request for 

the Court to order WSOU to produce the deposition transcripts and exhibits for any 

depositions of WSOU’s fact witnesses that have occurred in the other cases in which WSOU 

has asserted patent infringement against companies other than HPE.”); and 

 Ex. U, 6/21/22 Hr’g Tr. at 24:12-18 (“I’m going to deny the request for the loan and security 

agreements. I don’t think anything has changed for this case since the prior rulings by the 

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Court and especially [] in light of the Court’s ruling back in March denying a lot of these 

materials. And the rulings in the Google cases, I’m going to stay with those and we’re going 

to deny the defendant’s request on that.”). 

As such, and no less than eleven (11) times, the Court repeatedly denied ZTE’s requested 

relief. The Court should see ZTE’s absurd accusations and yet again, deny ZTE’s request. 

G. Because The Court Warned That ZTE Would Be Sanctioned For Its Repeated 

Discovery Requests But ZTE Nevertheless Requested The Same Documents In 

The Baseless Motion, Brazos Is Entitled To All Attorney’s Fees And Costs 

Incurred In Opposing The Motion 

ZTE should be sanctioned for acting in bad faith, repeatedly harassing Brazos with the 

same previously-denied discovery requests, and unnecessarily raising the cost of litigation. 

Indeed, this Court has already found that ZTE’s excessive motion practice and discovery 

misconduct may lead to sanctions against ZTE: 

 Ex. U. 6/21/22 Hr’g Tr. at 26:2-11 (“Okay. What I’m going to do, and I’ll tell you that when 

ZTE leads off with the December 6th email that has been explicitly overruled in a March 11th 

order, it does raise questions about a party’s motive in bringing this discovery dispute. 

However, I am very reluctant to award costs and fees. And so as of today, I’m going to deny 

the request for cost and fees. But we’ll say I’m nonplused by the approach. And we’ll 

consider it if we have to address these issues again in the future; 

 Ex. V, 6/28/22 email to Court enclosing agreed proposed order regarding June 21 Discovery 

Hearing) (“Plaintiff’s request for costs and fees is DENIED WITHOUT PREJUDICE. The 

Court is reluctant to award costs and fees at this time, but will consider them in the future 

should either party re-raise previously adjudicated disputes.”); and 

 WSOU v. ZTE, Case No. 6:22-cv-00136-ADA, Dkt. 25 (“The parties filed multiple motions in 

this case disputing the adequacy of service and wastefully raised the cost of litigation. The 

Court reminds the parties that service costs are taxable against the losing party... If WSOU 

prevails, then the Court will be strongly inclined to deem ZTE’s actions in this case 

“exceptional” under 35 U.S.C. § 285 because ZTE’s insistence for Hague service in this case 

stands out from its waiver of service in the 11 other pending cases, especially in combination 

with the excessive motion practice to date. So, if WSOU prevails, the Court will be inclined 

to award fees from the beginning of the case up through the completion of service, absent a 

similar waiver in this case.”). 

Further, in the Northern District of Texas action (which has been dismissed), ZTE moved 

to quash a subpoena to its subsidiaries after this Court expressly stated, and actually encouraged, 

Brazos to pursue such subpoenas, further increasing the cost of litigation: 

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 Ex. W, 5/12/22 Hr’g Tr. at 20:18-21:6 (“THE COURT: ...I see no reason why you should be 

prohibited or barred from issuing a Rule 45 subpoena for documents and information from 

ZTE USA. I think the Court and the parties have the ability as officers of the court under Rule 

45 to issue those subpoenas. That’s my belief. So if you issue them and are met with a motion 

to quash, then that, you know, you can cite to this part of the record if you wind up in 

another court. Or I know we’ve seen it in other cases where those issues sometimes get 

transferred back to this court for resolution. So that’s my decision on that is I’m going to 

deny, like I said, the request for ZTE USA’s documents without prejudice and suggest you try 

the subpoena route.”); 

 Dkt. 222 (“Plaintiff’s request to compel Defendant to produce damages documents from 

Defendant’s wholly-owned subsidiary ZTE (USA), Inc. (“ZTE USA”) is denied without 

prejudice. Plaintiff is encouraged to pursue a Rule 45 subpoena to seek discovery from 

ZTE USA, which may properly issue by this Court.”); and 

 ZTE (USA), Inc. v. WSOU Investments, LLC d/b/a/ Brazos Licensing and Development, Case 

No. 3:21-cv-02128-E, Dkt. 50 (N.D. Tex.) (ZTE’s Motion to Quash Rule 45 Subpoenas). 

As such, Brazos respectfully moves the Court to consider awarding Brazos the attorney’s 

fees and costs incurred in opposing the baseless Motion and responding to the same discovery 

requests that the Court denied repeatedly. 

IV. CONCLUSION 

For the foregoing reasons, the Court should: (i) deny ZTE’s meritless, procedurally 

defective, and frivolous Motion; and (ii) award Brazos attorney’s fees and costs incurred in 

opposing the Motion. 

 

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Dated: August 8, 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 in this District) 

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 

Mark D. Siegmund (TX Bar No. 24117055) 

mark@swclaw.com 

STECKLER WAYNE COCHRAN CHERRY 

PLLC 

8416 Old McGregor Road 

Waco, Texas 76712 

Telephone: (254) 651-3690 

Facsimile: (254) 651-3689 

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 document was served or 

delivered electronically to all counsel of record on this 8th day of August, 2022, via the Court’s 

CM/ECF system. 

/s/ Jonathan K. Waldrop

Jonathan K. Waldrop 

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