IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

HEADWATER RESEARCH LLC,

Plaintiff,

v.

CELLCO PARTNERSHIP d/b/a VERIZON 

WIRELESS, and VERIZON CORPORATE 

SERVICES GROUP, INC.,

Defendants.

CIVIL ACTION NO. 2:23-CV-00352

JURY TRIAL DEMANDED

DEFENDANTS’ REPLY IN SUPPORT OF 

MOTION TO STRIKE AND COMPEL SUPPLEMENTATION OF 

HEADWATER’S AMENDED INFRINGEMENT CONTENTIONS

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TABLE OF CONTENTS

1. Defendants Diligently Sought Clarity on Headwater’s Contentions......................................1

2. Headwater Fails to Establish Representativeness of the Few Charted Products.....................2

3. Headwater Has Not Identified Which Network-Side Components it Accuses.......................3

4. Headwater’s Contentions Improperly Mix and Match Accused Functionalities ....................5

5. Headwater Knew its Allegations for the Dependent Claims Are Deficient............................5

6. Conclusion.........................................................................................................................5

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TABLE OF AUTHORITIES

Page(s)

Cases

Orion IP, LLC v. Staples, Inc.,

407 F. Supp. 2d 815 (E.D. Tex. 2006)...................................................................................2

Realtime Data, LLC v. Rackspace US, Inc.,

No. 16-CV-00961-RWS-JDL, 2017 WL 1927749 (E.D. Tex. May 10, 2017)........................5

UltimatePointer, LLC v. Nintendo Co.,

No. 11-CV-496, 2013 WL 12140173 (E.D. Tex. May 28, 2013).......................................2, 3

Uniloc 2017 LLC v. Google LLC,

No. 18-CV-497-JRG-RSP (E.D. Tex. Mar. 27, 2020)...........................................................3

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TABLE OF ABBREVIATIONS

Abbreviation Term

Headwater or 

Plaintiff

Plaintiff Headwater Research LLC 

Verizon or 

Defendants

Defendants Cellco Partnership d/b/a Verizon Wireless and 

Verizon Corporate Services Group, Inc.

Asserted Patents U.S. Patent Nos. 8,589,541, 8,924,543, 9,198,042 and 9,215,613 

’541 Patent U.S. Patent No. 8,589,541

’543 Patent U.S. Patent No. 8,924,543

’042 Patent U.S. Patent No. 9,198,042 

’613 Patent U.S. Patent No. 9,215,613

P.R. Local Patent Rule

OTADM Over The Air Device Management 

PROPOTA Proprietary Over The Air 

VZOTADM Verizon OTADM 

FOTA Firmware Over The Air 

SDM Subscriber Device Management 

DM Device Management 

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TABLE OF EXHIBITS

Ex. Description

1 Plaintiff Headwater Research LLC’s Disclosure of Asserted 

Claims and Infringement Contentions (September 28, 2023) 

2 November 1, 2023 Letter from K. Dominguez to M. Fenster 

3 December 13, 2023 Letter from K. Dominguez to M. Fenster 

4 February 2, 2024 Letter from K. Dominguez to M. Fenster 

5 Plaintiff Headwater Research LLC’s Amended Disclosure of 

Asserted Claims and Infringement Contentions (January 12, 2024) 

6 March 4, 2024 Email from M. Zhu 

7 June 12, 2024 Letter from K. Dominguez to M. Fenster 

8 February 7, 2024 Email from M. Zhu

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Headwater’s operative January 12, 2024 infringement contentions are deficient, leaving 

still unable to understand Headwater’s infringement theories. Headwater served further 

supplemental contentions the day after Defendants filed this motion and still failed to substantively 

respond to any of Defendants’ concerns. They have not articulated, for instance how a chart for a 

single phone is representative of a wearable running a different operating system, how or what 

particular network components purportedly infringe, or whether disparate device functionalities 

are alleged to infringe individually. Headwater must link the evidence it cites to the claim elements, 

demonstrate representativeness (or provide charts for each product) and must clearly and 

unequivocally identify what component(s) it is accusing as infringing, as outlined specifically in 

Defendants’ opening brief. Mot. at 14. It still has not done so.

1. Defendants Diligently Sought Clarity on Headwater’s Contentions. 

Headwater mischaracterizes Defendants’ repeated efforts to obtain clarity on Headwater’s 

infringement theories. Opp. at 4. Defendants notified Headwater that its initial contentions were 

deficient as early as November 2023 (Mot. Ex. 2) and Defendants followed up in December 2023

and conferred with Headwater in January 2024. Mot. at 2–3. Headwater served supplemental 

infringement contentions on January 12, 2024, without leave of Court. Mot. at 3. On February 7, 

2024, after Headwater requested that Defendants not oppose Headwater’s belated motion to amend 

its contentions, Defendants explained that Headwater’s contentions still suffered from the same 

deficiencies now raised in this motion, e.g.:

[W]e have repeatedly explained that such vague, conclusory statements are 

inappropriate, including because they give us no guidance on what we are supposed 

to be searching for, and it is not up to us to guess at which network-side technology 

Headwater potentially might intend to accuse of infringement. 

Ex. 8. On June 12, Defendants sent another letter (Mot. Ex. 7), but Headwater took over a month

to respond and did not accommodate the conference until August 1. 

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Despite incorrectly accusing Defendants of “sitting silent for 5 months,” Headwater knew 

about the many deficiencies in its contentions the entire time. Headwater’s claim of prejudice

now rings hollow, as its own reliance on Orion IP, LLC v. Staples, Inc., 407 F. Supp. 2d 815 (E.D. 

Tex. 2006) demonstrates. In Orion, a defendant waited until after expert reports to assert 

deficiencies in the infringement contentions. Id. at 816. The Orion IP court denied the motion, 

finding that the Defendant “opted to wait to clarify the issue until such a time that it could claim 

prejudice” and “could have easily sought clarification either informally or by motion.” Id. at 817–

18. Here, Defendants have followed precisely those steps: first seeking informal resolution from 

Headwater, and when Headwater refused, filing this motion. 

2. Headwater Fails to Establish Representativeness of the Few Charted Products 

Headwater is required to “provide an explanation of the technical and functional identity” 

between the handful of products it elected to chart and the hundreds of others it did not. 

UltimatePointer, LLC v. Nintendo Co., No. 6:11-CV-496, 2013 WL 12140173, at *3 (E.D. Tex. 

May 28, 2013); see Mot. at 5–6. Instead, Headwater argues that Defendants should have 

understood that a single chart for each device manufacturer is representative of all other devices 

from that manufacturer because they all allegedly run the same operating system, here either

Android OS or iOS.1

 See Opp. at 6–7. This approach glosses over Headwater’s accusations 

against myriad “phones, tablets, and watches” which run different versions or altogether different 

types of operating systems. See Mot. at 5–6, n.4 (e.g., WatchOS versus iOS). 

But even crediting Headwater’s assertion, the evidence it cites for representativeness falls 

far short of the requirements of P.R. 3-1. For instance, Headwater contends that its allegations 

against “Background App Refresh” and “Low Power Mode” are representative for all accused 

1

 Headwater’s recent August 8 supplemental contentions, served without leave of Court, include 

only conclusory representativeness allegations based on the same reasoning. 

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Apple devices. Opp. at 7–8 (citing Opp. Ex. A). But Headwater relies on merely a string-cite of 

25 URLs with zero explanation. See, e.g. Opp. Ex. A at 9–10. Headwater likewise claims that its 

allegations against “Data Saver” are representative for all Android devices (Opp. at 8) but cites 

only to dozens of screenshots with no explanation.2

 See, e.g., Opp. Ex. B at 15–25. To the extent

there is information about representativeness buried in these strings of URLs or screenshots, it is 

Headwater’s burden to clearly explain it and demonstrate “technical and functional identity” 

between its charted and uncharted products. UltimatePointer, 2013 WL 12140173 at *3; Uniloc 

2017 LLC v. Google LLC, No. 18-CV-497-JRG-RSP (E.D. Tex. Mar. 27, 2020), Dkt. 235 at 2. 

3. Headwater Has Not Identified Which Network-Side Components it Accuses

Contrary to Headwater’s assertion (Opp. at 11), Verizon also agreed to make the same 

limited document collection responsive to Verizon’s understanding of the allegations on pages 10–

13 of Headwater’s chart for the ’042 Patent. Ex. 8. Headwater has received documents related to 

these issues and cited to some of them in identifying “OTADM,” “PROPOTA,” “VZOTADM,” 

“FOTA,” “SDM,” and/or “DM” as accused instrumentalities in its January 2024 contentions. E.g. 

Mot. Ex. 1 at 2. But despite having these documents for months, Headwater’s infringement charts 

never refer to these components at all, let alone explain how these components are related, if at 

all, to Headwater’s other network-side allegations. 

To start, it is irrelevant that Defendants were able to search for documents on a subset of 

Headwater’s network-side allegations. Defendants repeatedly explained to Headwater that its bare 

accusation against “servers” are insufficient to guide discovery. Mot. Ex. 2–4, 6 & 7. When 

Headwater identified its network-side allegations as comprising four pages in a single claim 

2 Headwater makes similar allegations, citing to a public webpage to show that “Android-based 

wearables” also use App Standby and Doze Mode. See Opp. at 9 n.5. This webpage is not cited 

in the contentions, and even if it were cited, it only further demonstrates that these wearables run 

a different operating system not addressed in Headwater’s contentions. 

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chart—which list the information contained in 3GPP “attach,” “bearer resource allocation,” 

“bearer resource modification,” and “PDN connectivity” requests—Defendants agreed to search 

for technical documents relevant to these request messages.3

 See Opp. Ex. G at 10–13; Ex. 8. 

However, these 3GPP allegations are insufficient. For instance, Headwater pretends that it 

refers to “attach request or other requests” for anything other than a single element of claim 1 of 

the ’042 Patent. Opp. at 11–12. Headwater’s only evidence, however, is a screenshot from a thirdparty website with no further explanation copied-and-pasted for each subsequent claim limitation. 

See Opp. Ex. G at 17, 18, 21. Headwater makes no effort to explain the relevance of this 

information—basic functionalities that indisputably were known and in ubiquitous practice prior 

to the Asserted Patents—nor is there any attempt to tie it to any other element of the claims. 

But it now appears that Headwater’s network-side allegations exceed far beyond the limited 

scope described above. For example, Headwater claims that it “maps [element 1[e] of the ’543 

Patent] to components and filters” in Verizon’s network and servers corresponding to “QCI Data 

Priority levels” and further claims to “explain how these priorities and QCI levels are provided” 

in subsequent claim elements 1[f] & 1[g]. Opp. at 13. But Headwater provides no explanation of 

how these QCI allegations relate to the 3GPP allegations, the allegations against ““OTADM,” 

“PROPOTA,” “VZOTADM,” “FOTA,” “SDM,” and/or “DM,” or indeed the elements of the 

asserted claims themselves. For instance, for the claimed “network provisioning instruction set,” 

a “network traffic inspection system,” and a “network policy enforcement system,” id.; see Opp. 

Ex. G at 14, 17, 18, Headwater’s contentions simply parrot the claim language. See Opp. Ex. G at 

17–18. Putting aside that Headwater’s QCI theory was first articulated in its opposition brief, 

3

 Defendants are continuing to search for and collect these documents based on the limited 

information provided in Headwater’s contentions and correspondence. 

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Headwater’s “paste[d] screenshots and block quotes” still leave Defendants without clarity on 

“where each element of each asserted claim is found within each Accused Instrumentality.” 

Realtime Data, LLC v. Rackspace US, Inc., No. 16-CV-00961-RWS-JDL, 2017 WL 1927749, at 

*2 (E.D. Tex. May 10, 2017).

4. Headwater’s Contentions Improperly Mix and Match Accused Functionalities

Headwater cannot evade clearly charting its infringement contentions by claiming, without 

explanation, that “the same underlying software functionality and code enables the accused 

features.” Opp. at 15. While Headwater accuses disparate functionalities (e.g., Doze Mode, App 

Standby, Adaptive Battery, and JobScheduler), its contentions are silent as to how any of these 

functionalities are related or whether they independently or collectively meet the elements of the 

asserted claims. For instance, for element 1[d] of the ’541 Patent, Headwater’s contentions are 

silent as to how any aspect of at least Doze Mode, App Standby, Adaptive Battery, and 

JobScheduler is determined based on either user input or information from a network element as 

required by this claim element.

5. Headwater Knew its Allegations for the Dependent Claims Are Deficient

Finally, Headwater asserts that “Verizon improperly waited until now to raise” deficiencies 

with Headwater’s charting of dependent claims. This is incorrect. On February 2, 2024, more 

than a month before Headwater served its operative infringement contentions, Defendants wrote 

to Headwater to complain about “Headwater’s assertion of hundreds of dependent claims, for 

which Headwater provides no substantive infringement allegations at all in most cases.” Ex. 4 at 

1. Headwater has known of this pervasive deficiency for months and done nothing. 

6. Conclusion

Defendants respectfully request the relief outlined in their opening brief. See Mot. at 14. 

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Dated: August 29, 2024

/s/ Katherine Q. Dominguez

Katherine Q. Dominguez (Lead Attorney)

kdominguez@gibsondunn.com

Josh A. Krevitt

jkrevitt@gibsondunn.com

Brian Rosenthal

brosenthal@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, New York 10166-0193

Telephone: (212) 351-4000

Facsimile: (212) 351-4015

Robert Vincent

rvincent@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, Texas 75201-2923

Telephone: (214) 698-3100 

Facsimile: (214) 571-2900 

Andrew Robb

arobb@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

310 University Avenue

Palo Alto, CA 94301

Telephone: (650) 849-5300 

Deron R. Dacus

ddacus@dacusfirm.com 

THE DACUS FIRM, P.C.

821 ESE Loop 323, Suite 430

Tyler, Texas 75701

Phone: (903) 705-1117

Attorneys for Defendants

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