FILED UNDER SEAL

 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 

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RESPONSE OPPOSING ZTE’S RENEWED MOTIONS TO DISMISS 

 
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1 

ZTE USA’s and ZTE TX’s renewed motion to dismiss or transfer (Dkt. 47)1 should be 

denied because venue is proper in this District. ZTE USA has a regularly established place of 

business in this District 

Venue is also proper because ZTE USA and ZTE TX are deemed to 

reside here under 28 U.S.C. §§ 1391(d) and 1400(b). 

BACKGROUND 

A. ZTE USA maintains a registered agent in this District. 

ZTE USA maintains its registered agent for service in Texas in this District. Ex. 12 at 

123:24-124:3; Ex. 2. ZTE USA uses, sells, offers for sale, imports, markets, distributes, installs, 

services, and supports telecommunications equipment in the U.S. Id. Ex. 3 ¶ 6 (Declaration of 

James Ray Wood). While ZTE claims it does not conduct these activities “from” this District, as 

explained below, the evidence shows ZTE regularly conducts these activities in this District. 

B.

1

 This response does not address section VI of ZTE’s motion, which argues this case should be 

transferred for the convenience of parties and witnesses under 28 U.S.C. §§ 1404(a) and 1406(a), 

because the Court struck that portion of ZTE’s motion as untimely. See 12/11/20 “Text Order 

Striking in Part 47 Motion to Transfer” (stating “Defendant’s deadline to file a motion to transfer 

was November 24, 2020. This motion was filed on December 4, 2020. The motion was thus not 

timely filed, and the clerk’s office is instructed to strike it. Defendant’s Motion to Dismiss will be 

taken under consideration.”). 

2

 The numbered exhibits to this motion refer to the exhibits attached to the declaration of Ryan 

Loveless. While this response is being filed in each of the above captioned cases, to preserve 

resources, the Loveless Declaration, exhibits and proposed Order are being filed only in the -487 

case. 
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2 

ZTE USA personnel serviced and had continuing contractual obligations to service this 

equipment, remotely and in person, through the end of 2020. Ex. 5-8 (see Ex. 8 at 2, extending 

agreement through December 31, 2020). The base agreement between ZTE USA and Gogo is 

dated August 17, 2011. Ex. 5.3 Public records show three amendments to the agreement, with the 

obligations under the agreement extending through December 31, 2020. Ex. 5-8. The contract 

requires ZTE USA to provide the ATG equipment and “installation, optimization, and 

commissioning of the [ATG Network].” See e.g., Ex. 5, at 2. It also imposes Warranty and Service 

obligations on ZTE USA. Id. The Gogo contract requires ZTE USA to provide, upon request from 

Gogo, “on-site engineering services,”4 “on-site engineering support,”5 “a ZTE BSS expert on-site

at Gogo’s facility,”6 “on-site BSS / Core networks engineers” and “on-site RF/Optimization 

engineers,”7 for “a minimum engagement period of three (3) months.”8 The agreement also states 

that ZTE USA maintained a security interest in the equipment and that title does not transfer to 

Gogo until payment in full. Ex. 5 at 4. There is no evidence title ever transferred from ZTE USA 

to Gogo.

3

 ZTE failed to disclose the existence of the Gogo contracts until after WSOU discovered a 

redacted copy of the contract filed with the SEC and confronted ZTE about it. Despite being 

compelled to do so (and misrepresenting to this Court that it had done so), ZTE never produced its 

contracts with Gogo. Rather, WSOU obtained redacted contracts attached to SEC filings made by 

Gogo. 

4

 Loveless Decl., Ex. 5 at 7. The copy of the contract WSOU obtained from Gogo’s public SEC 

filings redacts information about the on-site engineering services. Id. And despite being compelled 

to produce the Gogo contracts, ZTE has failed to do so. 

5

 Loveless Decl., Ex. 6 at 1-2. 

6

 Loveless Decl., Ex. 7 at 2. 

7

 Loveless Decl., Ex. 6 at 4. 

8

 Loveless Decl., Ex. 7 at 4. 
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. Below are photographs of a tower, and adjacent building with ZTE USA 

equipment, just southwest of Austin. Ex. 19.

 In addition to Gogo, ZTE USA also has obligations to service ZTE equipment in the 

WDTX sold to other companies. For example, FCC filings indicate that Rise Broadband (“Rise”) 

“invested several million dollars to purchase ZTE-produced LTE equipment and support 
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services.”9

. 

After WSOU filed suits against ZTE in March of 2020, ZTE attempted to flee this District. 

ZTE TX re-located its registered agent from the WDTX to the NDTX, 

. 

 

. 

Ex. 22 (announcing new “partners” including Gogo); . 

9

See 

https://ecfsapi.fcc.gov/file/10203262895645/JAB%20Wireless%20Comments%20in%20WC%2

0Dkt.%20No.%2018-89%20(2-03-2020).pdf (emphasis added). 
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C. ZTE USA’s use of warehouses in the WDTX. 

To enable delivery of products (including telecommunication equipment and handsets) to 

customers in this District, 

CEVA describes itself as an “end to end 

supply chain services and solution.” Ex. 13. Importation records show the importation of both 

handset and non-handset products from CEVA. Loveless, Decl., Ex. 14. 

. 

ZTE uses CEVA in “handl[ing] delivery to ZTE’s USA customers” (Ex. 16 ¶ 18) 
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Rise services multiple Western District of Texas cities including 

Waco, Austin, and San Antonio. See Loveless Decl. ¶ 27.10 

An FCC filing made by Rise notes it “has invested several million dollars to purchase ZTEproduced LTE equipment and support services.”11 In a letter to the FCC, Rise reports that it 

deployed ZTE equipment at 402 different sectors or access points.12

. 

D. Distribution of ZTE handsets in the WDTX. 

ZTE USA has proclaimed itself to be the “fourth largest smartphone manufacturer in the 

U.S.” and “the second largest in the pre-paid smartphone market.”13 ZTE USA directly sells and 

delivers phones, including accused products, to consumers, including residents of the WDTX. Ex. 

3 at ⁋6 (“ZTE (USA) Inc. uses, sells, offers for sale, imports, markets, distributes, installs, services, 

and supports telecommunications equipment in the U.S. including handsets and network devices, 

including online sales.”).

ZTE’s most recent direct-to-consumer product is the Axon 30.14 

10 See also https://broadbandnow.com/Rise-Broadband

11See 

https://ecfsapi.fcc.gov/file/10203262895645/JAB%20Wireless%20Comments%20in%20WC%2

0Dkt.%20No.%2018-89%20(2-03-2020).pdf 

12 See 

https://ecfsapi.fcc.gov/file/10826249451344/Supply%20Chain%20Ex%20Parte%20Letter.pdf

13 See https://www.zteusa.com/about-us 

14 See https://na.ztedevices.com/products/axon-30-ultra 
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. ZTE products are also sold in 

multiple stores in the Western District of Texas.

The GizmoWatch 2 is available at Verizon stores in 

Waco. Ex. 14 at 9.15

E. ZTE TX is a resident of Texas. 

It is undisputed that ZTE TX is a resident of Texas. WSOU filed its original complaints 

against ZTE TX in this District between March 23, 2020 and March 31, 2020. See Civil Action 

Nos. 6:20-cv-211, -216, -224, -228, -229, -231, -238, -240, -242, -254, and -255. ZTE TX accepted 

service of WSOU’s original complaints at the office of ZTE TX’s registered agent in Austin, 

Texas. See, e.g. Civil Action No. 6:20-cv-00211-ADA, Dkt. 10. 

On May 14, 2020, ZTE TX changed its registered office from Austin, Texas to Dallas, 

Texas. Loveless Decl., Ex. 14. WSOU voluntarily dismissed the original complaints and re-filed 

the current complaints on June 3, 2020. See Civil Action Nos. 6:20-cv-211, -216, -224, -228, -229, 

-231, -238, -240, -242, -254, and -255.

F. ZTE’s failure to disclose relevant information. 

During venue discovery, ZTE repeatedly withheld relevant information. ZTE did not 

disclose its contracts with Gogo, for example, until after WSOU located public redacted versions 

of the contracts and confronted ZTE. Even after ZTE was compelled to produce the Gogo 

contracts, ZTE failed to do so. Further, after ZTE was compelled to produce a second witness with 

knowledge concerning ZTE USA, ZTE Corporation, and ZTE TX, 

. Further, although the deposition topics included the Gogo contract and ZTE’s 

servicing and installation of equipment at specific addresses under the Gogo contract, 

15 ZTE failed to produce the specific contracts governing this product. 
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ARGUMENT AND AUTHORITIES 

A. ZTE USA has committed acts of infringement in this District and has a regularly 

established place of business in this District. 

Under § 1400(b), venue in a patent infringement case is proper “where the defendant has 

committed acts of infringement and has a regular and established place of business.” 28 U.S.C.A. 

§ 1400 (West). Venue is proper here because ZTE USA has committed acts of infringement here 

and has a regular and established place of business in this District. 

ZTE’s motion to dismiss contains a single sentence arguing that WSOU fails to allege an 

act of infringement in this District. ZTE makes no serious effort, however, to dispute WSOU’s 

allegation that ZTE has committed acts of infringement here and cannot plausibly deny that its 

alleged acts of infringement have occurred in this District. 

The Federal Circuit has interpreted “has a regular and established place of business” to 

mean: (1) there must be a physical place in the district; (2) the physical place must be a regular 

and established place of business; and (3) the regular and established place of business must be the 

place “of the defendant.” In re Cray Inc., 871 F.3d 1355, 1362-63 (Fed. Cir. 2017). The regular 

and established place of business requires the “regular, physical presence of an employee or other 

agent of the defendant conducting the defendant’s business at the alleged ‘place of business.’” In 

re Google LLC, 949 F.3d 1338, 1345 - 47 (Fed. Cir. 2020). 
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1. Cell towers and buildings housing ZTE equipment serviced by ZTE personnel are 

a regularly established place of business of ZTE.

Places of business: The cell towers and adjacent buildings where ZTE installs and services 

its equipment satisfy the first Cray factor because they are physical places in this District. See In 

re Google LLC, 949 F.3d 1338, 1343 (Fed. Cir. 2020) (rejecting Google’s argument that the 

physical “place of business” inquiry should focus on “whether the defendant has real property 

ownership or a leasehold interest in real property” and recognizing that Google’s “GGC servers” 

could satisfy Cray because they “are physically located in the district in a fixed, geographical 

location.”). Here, like the GGC servers, ZTE’s equipment is in a fixed, geographical location. 

Further, unlike In re Google, here the contract requires “an employee or agent of the 

defendant to be conducting business at that place.” Specifically, ZTE is required to deliver, install, 

and service ZTE’s equipment at the towers. Ex. 5-8. Further, ZTE USA has a registered agent in 

this District capable of accepting service. Ex. 2. 
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Regular and established: 

The Gogo contract requires a minimum of three months of service for each service request. See 

e.g., Ex. 7 at 4. Thus, such a service is not a “one-time event” and is “regular and established” 

business of ZTE. See e.g., Ex. 7 at 4; cf In re Google LLC, at 949 F.3d at 1346 (“The installation 

activity does not constitute the conduct of a ‘regular and established’ business, since it is a onetime event for each server.”).16 

Moreover, the evidence shows ZTE’s service and warranty obligations are not limited to 

the equipment ZTE sold to Gogo. An FCC filing indicates that Rise “invested several million 

dollars to purchase ZTE-produced LTE equipment and support services.”17 Rise services 

multiple Western District of Texas cities including Waco, Austin, and San Antonio.18

In short, while ZTE has not disclosed the full extent of its equipment located in the WDTX 

or ZTE’s contractual obligations to service such equipment, the evidence shows ZTE is in the 

business of installing and servicing equipment in this District, that ZTE personnel have performed 

such services, and that the service is not isolated or irregular. 

.

16 ZTE’s service is also different from the installation activity discussed in In re Google because, 

here, installation and servicing of ZTE’s equipment is the business ZTE is conducting, not merely 

ancillary to it. 

17See 

https://ecfsapi.fcc.gov/file/10203262895645/JAB%20Wireless%20Comments%20in%20WC%2

0Dkt.%20No.%2018-89%20(2-03-2020).pdf 

18 See https://broadbandnow.com/Rise-Broadband. 
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This is not a situation where ZTE’s customers, like Gogo, could simply find a different 

supplier to service ZTE equipment. ZTE’s customers needed support from engineers with expertise 

relating to ZTE’s equipment. Indeed, at least Gogo had a contractual right to demand a “ZTE BSS 

expert” on-site. Ex. 7 at 2. Only one month after WSOU filed suit against ZTE in the WDTX, 

 DFW, a company coincidentally located within minutes of ZTE’s office in 

Richardson, Texas.19

, appears to be nothing 

more than a sham designed for the purpose of withdrawing ZTE from this District while still 

honoring its contractual obligations to service equipment in this District. 

 

Further, even if the continuing services through DFW are ignored, defendant “cannot 

establish a business in a particular judicial district and then abandon or sell it without remaining 

amenable to suit for venue purposes in that district for a reasonable time[.]” Welch Sci. Co. v. 

19 See https://www.dfwtechnology.com/contact. 
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12 

Human Eng’g Inst., Inc., 416 F.2d 32, 36 (7th Cir. 1969) (finding venue proper under § 1400(b) 

where defendant ceased doing business in the district only 37 days before the suit was filed). 

Places of the defendant: The cell towers where ZTE installs and services its equipment 

satisfy the third Cray factor because ZTE maintains a property interest in the ZTE equipment on 

the towers. Specifically, ZTE USA maintains a purchase money security interest in the ATG-4 

Products on the towers until receiving full payment of all undisputed amounts for the ATG-4 

Products. There is no evidence title ever transferred from ZTE to Gogo. ZTE’s right to install, 

maintain, and service its equipment at the cell towers is like a lease. Further, it is a place where 

ZTE’s business – installing and servicing telecommunications equipment – is carried out. Further, 

the services required by the Gogo contract are not ancillary to ZTE’s business. Rather, installation 

and service of the equipment is the business being conducted by ZTE. See Ex. 5-8. 

B. Venue is also proper because ZTE USA and ZTE TX (collectively “ZTE”) is 

deemed to reside in this District. 

Venue is also proper because ZTE is deemed to reside here under the plain terms of 28 

U.S.C. §§ 1391(d) and 1400(b). Under § 1400(b) of chapter 28, a civil action for patent 

infringement “may be brought in the judicial district where the defendant resides.” 28 U.S.C. § 

1400(b). Section 1400(b) of chapter 28 does not define “reside.” Instead, for states with multiple 

districts, § 1391(d) of chapter 28 defines where a corporation resides “[f]or purposes of venue 

under this chapter[.]” See 28 U.S.C. 1391(d) (emphasis added). 

Because “this chapter” refers to chapter 87 of title 28, which includes §1400(b), the 

definition of “reside” found in § 1391(d) “for purpose of venue under this chapter” must be 

incorporated in § 1400(b). See VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 
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1575 (Fed. Cir. 1990), sometimes incorrectly cited as abrogated by TC Heartland LLC v. Kraft 

Foods Group Brands LLC, 137 S. Ct. 1514, 197 L. Ed. 2d 816 (2017). 

Section 1391(d) states that, in states with multiple districts, a corporation is “deemed to 

reside in any district in that State within which its contacts would be sufficient to subject it to 

personal jurisdiction if that district were a separate state.” 28 U.S.C. 1391(d). Here, because ZTE’s 

contacts with this District would be enough to subject it to personal jurisdiction in this District, it 

is deemed to reside here. 

a. Fourco and TC Heartland do not address new § 1391(d) and should not 

preclude this Court from applying § 1391(d). 

The Supreme Court’s decisions in Fourco and TC Heartland does not require a different 

conclusion. The Supreme Court has never determined whether a general venue statute that governs 

the “chapter” to which § 1400(b) belongs must be applied to § 1400(b). Instead, each time the 

Supreme Court has considered the effect of § 1391(c), it has interpreted a version of § 1391(c) that 

does not include the phrase “under this chapter.” See TC Heartland, 137 S. Ct. at 1521; Fourco 

Glass Co. v. Transmirra Prod. Corp., 353 U.S. 222, 222, 77 S. Ct. 787, 788, 1 L. Ed. 2d 786 

(1957). 

i. Fourco does not address new language of § 1391(d). 

In Fourco, the Supreme Court held that 28 U.S.C. § 1400(b) was, at that time, the “sole 

and exclusive provision controlling venue in patent infringement actions, and that it [was] not to 

be supplemented by the provisions of 28 U.S.C. § 1391(c).” Fourco, 353 U.S. 222 (emphasis 

added). Section 1391(c) was, however, a significantly different statute when Fourco was decided 

in 1957. It stated: 

(c) A corporation may be sued in any judicial district in which it is incorporated or 

licensed to do business or is doing business, and such judicial district shall be 

regarded as the residence of such corporation for venue purposes. 

See id. Fourco did not and could not consider whether 28 USC § 1400(b) is supplemented by what 

is now 28 USC 1391(d). 

In 1988, Congress amended 1391(c) – the venue provision at issue in Fourco – to state: 
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(c) For purposes of venue under this chapter, a defendant that is a corporation shall 

be deemed to reside in any judicial district in which it is subject to personal 

jurisdiction at the time the action is commenced. In a State which has more than 

one judicial district and in which a defendant that is a corporation is subject to 

personal jurisdiction at the time an action is commenced, such corporation shall be 

deemed to reside in any district in that State within which its contacts would be 

sufficient to subject it to personal jurisdiction . . . 

28 U.S.C. § 1391 (1988) (emphasis added). 

Two years later in VE Holding, the Federal Circuit considered whether “by [the 1988] 

amendment to § 1391(c) of chapter 87, Congress meant to apply [the new] definition [of ‘reside’] 

to the term as it is used in § 1400(b)[.]” VE Holding, 917 F.2d at 1575. The Federal Circuit 

recognized: 

Section 1391(c) as it was in Fourco is no longer. We now have exact and classic 

language of incorporation: For purposes of venue under this chapter[.] 

Id. at 1579 (emphasis added). It concluded that because 28 USC § 1400(b) and 28 USC § 1391(d) 

belong to the same “chapter” (chapter 28), the definition of “reside” provided in section 1391(c) 

“for purposes of venue under this chapter” must apply to section 1400(b). Id. at 1579 (noting it 

“would not be sensible to require Congress to say, ‘For purposes of this chapter, and we mean 

everything in this chapter . . .,’ in order to ensure that it has covered everything in a chapter of the 

statutes”) (emphasis in original). 

The Federal Circuit bolstered its decision by noting the following from a December 4, 1986 

memorandum to the subcommittee explaining the proposed revision: 

The [new] definition of corporate residence in § 1391(c) now provides a basis for 

applying the substantial number of venue statutes enacted as part of various 

substantive federal laws. As a matter of caution, the proposal limits its definition of 

residence to the venue provisions gathered in Chapter 87 of the Judicial Code, 28 

U.S.C. §§ 1391 through 1412. 

Id. at 1582 (emphasis in original). 

VE Holding refuted the argument that under Fourco, the only way for Congress to change 

venue in a patent infringement action is to change § 1400(b), noting that the Supreme Court had 

already found § 1400(b) was supplemented by former § 1391(d) in patent suits against foreign 

defendants: 
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It is sometimes said that, since Fourco, the only way to change the way that venue 

in patent infringement actions is determined is to change § 1400(b). This argument 

fails, however, because the Supreme Court, in Brunette, 406 U.S. 706, 92 S.Ct. 

1936, refused to impose such a disablement upon the Congress’ ability to enact or 

amend legislation. The issue in Brunette was whether § 1400(b) governed venue in 

a patent suit involving a foreign corporation, or whether the general venue provision 

applicable to aliens, 28 U.S.C. § 1391(d), governed. The Court held § 1391(d) 

applied, and that § 1400(b) was supplemented by the provision governing suits 

against aliens. 

Id. at 1579 (emphasis added). 

ii. 2011 Amendments to § 1391 did not remove “under this chapter” from 

new § 1391(d). 

In 2011, Congress again amended § 1391 by striking subsections (a) through (d) and 

replacing them with new subsections (a) through (d). As part of the amendment, § 1391(c) (the 

section at issue in VE Holding) was moved to § 1391(d). That section still defines “residency of 

corporations in states with multiple districts” for “purposes of venue under [chapter 28].” 28 

U.S.C. § 1391(d). New § 1391(c) now defines residency for natural persons, “entities with the 

capacity to sue and be sued” in states that do not have multiple districts, and aliens. It does not 

contain the specific language of incorporation “under this chapter.” Instead, it states in relevant 

part: 

(c) Residency.--For all venue purposes-- 

(1) a natural person . . . ; 

(2) an entity with the capacity to sue and be sued in its common name under 

applicable law, whether or not incorporated, shall be deemed to reside, if a 

defendant, in any judicial district in which such defendant is subject to the 

court’s personal jurisdiction with respect to the civil action in question and, if a 

plaintiff, only in the judicial district in which it maintains its principal place of 

business; and 

(3) a defendant not resident in the United States may be sued. . . 

28 U.S.C. § 1391. 

iii. TC Heartland does not address new § 1391(d). 

In 2017, the Supreme Court held that the definition of “reside” in new § 1391(c)(2) does 

not apply to § 1400(b). See TC Heartland, 137 S. Ct. at 1521. TC Heartland rejected the argument 
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that the phrase “[f]or all venue purposes” in new § 1392(c)(2) required applying the section to § 

1400(b), pointing out that: (1) the statute at issue in Fourco included similar language (“for venue 

purposes”); and (2) new § 1391(a) contains a “savings clause” stating that § 1391 “shall govern 

the venue of all civil actions” “[e]xcept as otherwise provided by law.” Id. at 1516. TC Heartland

further found that the absence of “under this chapter” in new § 1391(c) showed Congress did not 

intend new § 1391(c) to define “reside” for § 1400(b). Id. at 1521 (“Congress deleted ‘under this 

chapter’ in 2011 and worded the current version of § 1391(c) almost identically to the original 

version of the statute.”). 

The opposite is true for current § 1391(d), which does not use the general language “[f]or 

all venue purposes” and instead retains the specific, classic language of incorporation considered 

in VE Holding: “[f]or purposes of venue under this chapter[.]” 28 U.S.C. § 1391(d) (emphasis 

added). The broader phrase “[f]or all venue purposes” evaluated in TC Heartland does not have 

the same impact because it is general language that does not specifically apply to chapter 28. As 

Fourco recognized, “[s]pecific terms prevail over the general in the same or another statute which 

otherwise might be controlling.” Fourco, 353 U.S. at 228–29. 

Although TC Heartland contains certain broad statements about “§ 1391,” the discussion 

in TC Heartland is limited exclusively to the effect of the language in new § 1391(c)(2). Limiting 

its discussion to the language of § 1391(c)(2) was appropriate because the case on appeal in TC 

Heartland involved a suit brought in Delaware, a state with only one district. Therefore, only the 

new § 1391(c)(2) was properly at issue. There is no mention of the new §1391(d) in TC Heartland

and no discussion concerning whether the definition of residence in the new §1391(d) applies to 

§1400(b). 

Any notion that TC Heartland must apply to the whole of § 1391 is refuted by the Court’s 

refusal to address the new § 1391(c)(3). Just as § 1391(d) was not at issue in TC Heartland because 

the case on appeal was filed in a state with only one district, § 1391(c)(3) was not at issue because 

the defendant was a resident of the United States. The Court refused to address the new § 

1391(c)(3) or “express any opinion on this Court’s holding in Brunette” (which applied old § 
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1391(d) in patent cases despite § 1400(b)). See TC Heartland at 7, n. 2. Any notion that TC 

Heartland applies to the whole of § 1391 is further refuted by In Re HTC Corp., in which the 

Federal Circuit refused to extend TC Heartland to § 1391(c)(3) and instead affirmed Brunette. In 

re HTC Corp., 889 F.3d 1349, 1356 (Fed. Cir. 2018), cert. denied sub nom. HTC Corp. v. 3G 

Licensing, S.A., 139 S. Ct. 1271, 203 L. Ed. 2d 279 (2019) (cleaned up) (emphasis in original) 

(“as the Court held in Brunette, § 1400(b) itself was not intended to apply to alien defendants”). 

iv. Only VE Holding addresses the relevant language at issue. 

It is instructive to compare the statutory provisions at issue in Fourco, TC Heartland, and 

VE Holding. Of the three, only VE Holding, where certiorari was denied in 1991, involves the 

language of incorporation at issue here. 

Statutory language at issue in Fourco: (c) A corporation may be sued in any judicial 

district in which it is incorporated or licensed to do business or is doing business, 

and such judicial district shall be regarded as the residence of such corporation for 

venue purposes. 

Statutory language at issue in VE Holding: (c) For purposes of venue under this 

chapter, a defendant that is a corporation shall be deemed to reside in any judicial 

district in which it is subject to personal jurisdiction at the time the action is 

commenced . . . 

Statutory language at issue in TC Heartland: For all venue purposes -- (2) an entity 

with the capacity to sue and be sued in its common name under applicable law, 

whether or not incorporated, shall be deemed to reside, if a defendant, in any 

judicial district in which such defendant is subject to the court’s personal 

jurisdiction . . . 

Language it issue in this case: (d) Residency of corporations in States with 

multiple districts.--For purposes of venue under this chapter, in a State which 

has more than one judicial district and in which a defendant that is a corporation is 

subject to personal jurisdiction . . . 

WSOU does not challenge the correctness of applying Fourco and TC Heartland under the 

facts of those cases. In both cases, the statutory language did not include classic language of 

incorporation “under this chapter.” WSOU does challenge the correctness of applying TC 

Heartland to hold that new § 1391(d), which expressly defines “reside” for “purposes of venue 

under [chapter 28]” somehow does not apply to § 1400(b) of chapter 28. Fourco and TC Heartland

simply applied previous versions of the general venue statute and (so long as they are limited to 
FILED UNDER SEAL 

18 

the provisions they addressed) were correctly decided; however, neither case addressed the new 

statutory language under § 1391(d). 

v. WSOU requests that this Court revisit Toybox. 

 WSOU asks this Court to revisit the Austin court’s decision in Toybox, where the court 

relied on § 1391(a) and concluded that Fourco conflicts with the current version of § 1391(d) by 

defining “resides” in § 1400(b) for purposes of domestic corporations. Interactive Toybox, LLC v. 

Walt Disney Co., 1:17-CV-1137-RP, 2018 WL 5284625, at *2 (W.D. Tex. Oct. 24, 2018). Fourco

did not address whether new § 1391(d) is consistent with the definition of “resides” for purposes 

of § 1400(b). The legislative history for the 2011 amendments explains that “[n]ew paragraph 

1391(a)(1) would follow current law in providing the general requirements for venue choices, but 

would not displace the special venue rules that govern under particular Federal statutes.” See H.R. 

REP. 112-10, 18, 2011 U.S.C.C.A.N. 576, 580 (emphasis added). At the time this amendment was 

passed, VE Holding had been part of the “special venue rules that govern under particular Federal 

statutes” for over fifty years. Congress knew how §§ 1391 and 1400(b) were applied under VE 

Holding and retained the very language of incorporation VE Holding was based on. To conclude 

that Fourco provides a definition of “reside” that conflicts with the “special venue rules that govern 

under particular Federal statutes,” one must first disregard how §§ 1391 and 1400(b) were applied 

under VE Holding. This can be done only by assuming, from the outset, that TC Heartland

abrogates VE Holding as it relates to § 1391(d). As explained above, TC Heartland did not address 

new § 1391(d) because that question was not properly before the Court. 

 The notion that Fourco is the sole and complete source of the definition for “reside” under 

the current version of § 1391(d) is belied by the Federal Circuit’s recent recognition that “Fourco

. . . simply did not address the corporate venue at the district level of granularity.” In re 

BigCommerce, Inc., 890 F.3d 978, 985 (Fed. Cir. 2018) (emphasis added) (considering “Which 

single judicial district in a multi-district state is the proper judicial district for purposes of venue 
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19 

under § 1400(b) in an infringement suit against a corporate defendant?”).20 In other words, Fourco

did not consider the very question Congress answered by passing § 1391(d). 

Fourco was based on an entirely different version of § 1391 than the current version. The 

Austin Court’s reliance on Fourco’s interpretation of old statutory language to interpret new 

statutory language is incorrect. 

vi. ZTE has sufficient contact with this District to subject it to personal 

jurisdiction, and therefore, venue. 

ZTE’s contacts with this District are sufficient to subject ZTE to personal jurisdiction (and 

therefore venue) in this District at least because ZTE purposefully places accused products into 

the stream of commerce in this District. In Slyce, this Court “applied personal jurisdiction against 

an out of state defendant that sold its software to a third-party, who then bundled the software into 

an app and sold it in the United States.” Match Group, LLC v. Bumble Trading Inc., W-18-CV00080-ADA, 2020 WL 1287958, at *4 (W.D. Tex. Mar. 18, 2020) (summarizing Slyce Acquisition 

Inc. v. Syte - Visual Conception Ltd., No. W-19-CV-00257-ADA, 2019 WL 7598931 (W.D. Tex. 

Oct. 22, 2019), reconsideration denied, No. W-19-CV-00257-ADA, 2020 WL 278481 (W.D. Tex. 

Jan. 10, 2020)). This is precisely how ZTE Corporation and ZTE USA operate. Ex. 16 ¶ 18. 

Further, ZTE TX’s contacts with this District go beyond placing accused products into the 

stream of commerce. It is undisputed that ZTE TX is incorporated in Texas, had a registered agent 

here until May 14, 2020, and that ZTE TX’s registered agent in Austin accepted service of 

WSOU’s complaints in the original cases. See, e.g. Civil Action No. 6:20-cv-00211-ADA, Dkt. 

10.21

vii. ZTE TX is deemed to reside in this District because it is incorporated 

in Texas and had its registered office in this District until May 14, 2020.

20 Like TC Heartland, BigCommerce contains no discussion of the impact of the current version 

of § 1391(d) on § 1400(b). Thus, although BigCommerce involves a multi-district state, the issue 

considered by BigCommerce is whether a defendant who is incorporated in a state “resides” in 

every district within that state by virtue of being incorporated within the state. 

21By accepting service, ZTE TX indisputably consented to jurisdiction in the original cases, which 

alleged the same infringement as the current cases. 
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20 

If a corporate defendant does not maintain a principal place of business within the state in 

which it is incorporated, then the “natural default is to deem it to reside in the district in which its 

registered office, as recorded in its corporate filings, is located[.]” In re BigCommerce, Inc., 890 

F.3d at 985. Here, it is undisputed that ZTE TX was “deemed” to reside in this District at the time 

WSOU filed its original complaints because, at the time, WSOU’s registered office was in Austin, 

Texas. 

Even if the original complaints are ignored, ZTE TX should still be deemed to reside in 

this District because it changed its registered office from Austin to Dallas only twenty days before 

the current cases were filed. A defendant “cannot establish a business in a particular judicial district 

and then abandon or sell it without remaining amenable to suit for venue purposes in that district 

for a reasonable time[.]” Welch Sci. Co., 416 F.2d at 36 (finding venue proper under § 1400(b) 

where defendant ceased doing business in the district only 37 days before the suit was filed). ZTE 

TX should not be allowed to evade venue in this District by abandoning its registered office in 

Austin after WSOU filed its original complaints here and only twenty days before WSOU re-filed 

its current complaints. At the very least, venue is proper here because the current complaints were 

filed a reasonable time after ZTE TX attempted to abandon this District. 

There is nothing unfair about this outcome. ZTE TX claims this District (not the NDTX) 

is the only district in Texas where ZTE TX has maintained a physical place of business. See Mtn., 

Shan Decl. 14. ZTE TX’s registered office in the NDTX is merely the Dallas location of CT 

Corporation System. 

 
FILED UNDER SEAL 

21 

Dated: June 18, 2021 Respectfully submitted, 

By: /s/ Ryan Loveless 

James L. Etheridge 

Texas Bar No. 24059147 

Ryan S. Loveless 

Texas Bar No. 24036997 

Etheridge Law Group, PLLC 

2600 E. Southlake Blvd., Suite 120 / 324 

Southlake, TX 76092 

Tel.: (817) 470-7249 

Fax: (817) 887-5950 

Jim@EtheridgeLaw.com 

Ryan@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 

 

Counsel for Plaintiff WSOU Investments, LLC 

CERTIFICATE OF SERVICE

A true and correct copy of the foregoing instrument was served or delivered electronically 

via the U.S. District Court [LIVE]-Document Filing System to all counsel of record June 18, 2021. 

/s/ Ryan Loveless 

Ryan S. Loveless