IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

MARSHALL DIVISION

HEADWATER RESEARCH LLC, 

 Plaintiff, 

 v. 

CELLCO PARTNERSHIP D/B/A WIRELESS 

AND VERIZON CORPORATE SERVICES 

GROUP, INC., 

 Defendants. 

Case No. 2:23-cv-00352-JRG-RSP

JURY TRIAL DEMANDED 

PLAINTIFF HEADWATER RESEARCH LLC’S MOTION TO COMPEL 

CORE TECHNICAL DOCUMENTS REQUIRED UNDER PATENT L.R. 3-4(a) 

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TABLE OF CONTENTS 

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

II. FACTUAL BACKGROUND ............................................................................................... 2

III. ARGUMENT ........................................................................................................................ 4

A. Headwater’s P.R. 3-1 Contentions Accuse Verizon Network Servers 

and Server-Side Functionality of Infringement ........................................................... 4

1. January 2024: Headwater, at Verizon’s Request, Identified the 

Verizon Server-Side Functionalities It Accused of Infringement ..................... 5

2. January 2024 – June 2024: Verizon Identifies No Problems 

with Headwater’s January 2024 Amended Infringement 

Contentions ....................................................................................................... 6

B. Verizon’s Failure to Produce the Required Technical Information and 

Source Code Is Prejudicial and Without Justification ................................................. 9

IV. CONCLUSION ................................................................................................................... 10

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TABLE OF AUTHORITIES 

Cases

Orion IP, LLC v. Staples, Inc., 

407 F. Supp. 2d 815 (E.D. Tex. 2006) ........................................................................................ 7 

Rules

Federal Rule of Civil Procedure 33(d) ............................................................................................ 4 

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I. INTRODUCTION 

Verizon has refused to produce non-public technical documents, including source code, in 

violation of its obligation under P.R. 3-4(a). Headwater’s Complaint, and P.R. 3-1(c) charts and 

infringement contentions, accuse Verizon servers and mobile devices retailed by Verizon of 

infringing certain claims of U.S. Patent Nos. 8,589,541 (“’541 patent”), 8,924,543 (“’543 patent”), 

9,198,042 (“’042 patent”), and 9,215,613 (“’613 patent”) (together, the “Asserted Patents”). 

Headwater’s infringement contentions not only accuse various phones and tablets but also explain 

how those products perform certain claim elements in conjunction with Verizon’s servers, which 

configure the accused phones and tablets with telecommunications service and Internet 

connectivity. Verizon’s servers are specifically identified as Accused Products. 

Despite its servers clearly being accused in Headwater’s contentions, Verizon has limited 

the scope of its technical document production to only what it has referred to as “device-side” (as 

opposed to server-side) functionality, while reassuring Headwater that it has produced some 

unspecified quantity of server-side technical documentation. As for source code, Verizon has 

refused to produce anything at all. As justification, Verizon asserts that Headwater’s contentions 

do not adequately describe the involvement of Verizon’s servers in the alleged infringement, and 

indeed has recently filed a motion to strike Headwater’s identification of specific Verizon server 

functionality to which it earlier agreed were within the scope of this case. 

Verizon cannot fairly dispute that non-public technical documentation and source code is 

relevant to infringement here and should be produced. This District’s P.R. 3-4(a) requires the 

alleged infringer to produce any and all documents showing “the operation of any aspects of or 

elements of an Accused Instrumentality.” Headwater has repeatedly asked Verizon to produce this 

material. Because Verizon has continually refused to do so, Headwater respectfully requests from 

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the Court an order requiring Verizon to produce all relevant documentation and source code for 

the server-side devices and functionalities identified in Headwater’s infringement contentions. 

II. FACTUAL BACKGROUND 

On July 28, 2023, Headwater filed this lawsuit, accusing Verizon of infringing, among 

other patents, the ’543 and ’042 Patents, which cover aspects of network-side functionality, 

including “network plan provisioning system[s] communicatively coupled to a wireless end-user 

device” and methods related to “sending configuration information to the wireless end-user 

device.” See Dkt. 1. 

On September 28, 2023, Headwater served its initial infringement contentions, identifying 

accused devices, features, and functionalities by both name and model number as well as by 

category and description, based on public information available to Headwater. And where names 

and model numbers were not publicly available, Headwater specifically identified “[s]ervers, 

hardware, software, and services leased, owned, supported, and/or operated by Verizon comprising 

Verizon’s wireless network services functionality,” citing to publicly available evidence from 

Verizon.com (and elsewhere). Headwater also included a chart for each asserted patent. 

On December 21, 2023, Verizon produced documentation pursuant to P.R. 3-4, but only 

for device-side functionality. Verizon did not produce confidential documentation regarding 

network-side functionality identified in Headwater’s ’543 and ’042 patent infringement 

contentions. Pursuant to various meet and confers between the parties, Headwater served amended 

infringement contentions on January 12, 2024. These amendments did not change the scope of 

Headwater’s theories of infringement, but rather provided further explanation and clarification 

requested by Verizon. 

With respect to the ’543 and ’042 patents covering additional network-side functionality, 

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Headwater’s charts allege infringement because “Verizon offers telecommunications service plans 

to customers that are provided through various network elements such as telecommunications base 

stations and cell sites, edge servers, and other telecommunications servers. Verizon provides 

various network service plans to customers for purchase, including through the Verizon.com 

website as well as through Verizon-provided services such as its pre-paid mobile service 

category.” See, e.g., Dkt. 72-1, at 269. Headwater’s infringement charts explain Verizon’s 

infringement, citing to Verizon’s website (and others) specifically identifying Verizon’s “Plan[s]” 

(such as “Unlimited Plus” and “total by Verizon”), “Premium Streaming,” and “Data Boost” 

functionality offered by Verizon, as well as “QCI Data Priority” levels and “PCO values” used by 

Verizon’s network and end-user devices. 

Headwater’s amended contentions further identify Verizon network-side functionality by 

name—which Headwater was able to ascertain after a diligent review of Verizon’s device-side 

documents produced less than one month earlier. Dkt. 73, at 4-5 (identifying “Servers, hardware, 

software, and services leased, owned, supported, and/or operated by Verizon comprising Verizon’s 

wireless network services functionality, including but not limited to 

See, e.g., VZN- HW0174593, VZN-HW0177231, 

VZN-HW0173610, VZN-HW0169149.”). 

Throughout 2024, the parties have met and conferred and exchanged correspondence 

regarding Verizon’s document and source code production in the ordinary course. For example, 

on January 11, 2024, Headwater sent a letter to Verizon identifying various deficiencies in 

Verizon’s P.R. 3-4(a) document production. But even after Headwater served (at Verizon’s 

request) its amended January 2024 infringement contentions, Verizon continued to refuse to 

produce any source code or technical documentation specifically relating to the server-side 

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functionality at issue for the ’543 and ’042 patents. Instead, Verizon has continued to produce 

device-side documents, which Headwater has reviewed during the normal course of discovery but 

which fail to show the operation of Verizon’s network-side functionality. On June 11, 2024, 

Headwater also notified Verizon about deficiencies in its interrogatory responses, specifically 

Verizon’s use of Federal Rule of Civil Procedure 33(d) to identify large bates ranges of documents 

without any narrative explanation. In response, Verizon continued to refuse to produce documents 

sufficient to show the operation of Verizon’s network-side functionality. On June 12, 2024, 

Verizon sent a letter that complained about new supposed deficiencies in Headwater’s 

infringement contentions—this time asserting, without explanation and for the first time, that even 

though Headwater had identified specific server-side functionality, “none of these newly accused 

elements appears anywhere in Headwater’s claim charts.” Dkt. 72-7, at 3. The parties held a leadand-local meet and confer on Verizon’s continuing refusal to produce network-side discovery and 

are at impasse. 

III. ARGUMENT 

A. Headwater’s P.R. 3-1 Contentions Accuse Verizon Network Servers 

and Server-Side Functionality of Infringement 

Headwater’s ’543 and ’042 patents claim inventions in the telecommunications space that 

specifically involve limitations and steps practiced by network system used in the provisioning of 

telecommunications service to mobile devices like cell phones. 

For example, claim 1 of the ’543 patent claims a “network service plan provisioning system 

communicatively coupled to a wireless end-user device over a wireless access network,” where 

such network service plan provisioning system is required to perform steps such as: (1) “obtain 

and store a first service plan component and a second service plan component,” where the two 

service plan components respectively comprise first and second “traffic classification filters,” and 

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then (2) “process the first service plan component and the second service plan component to create 

a network provisioning instruction set in accordance with a prioritization of the first traffic 

classification filter over the second traffic classification filter.” ’543 patent, cl. 1. 

Similarly, in the ’042 patent, claim 1 requires a method comprising, among other steps, 

“receiving, over a service control link, a report from a wireless end-user device” and “sending 

configuration information to the wireless end-user device over the service control link.” Neither 

the ’543 or ’042 patent is, as Verizon suggests, limited to the “device side” of how end user mobile 

devices are provisioned by servers providing connectivity over a telecommunication network. The 

’543 and ’042 patents are directed specifically to network-side functionality and how and what 

those networks communicate with and to end-user devices. 

1. January 2024: Headwater, at Verizon’s Request, Identified the 

Verizon Server-Side Functionalities It Accused of Infringement 

Verizon has no excuse for refusing to produce documents and source code for the serverside functionality at issue here. Earlier in this case, Verizon specifically asked Headwater to 

provide, under P.R. 3-1, more detail about what Headwater meant when it identified, in its 

September 29, 2023 infringement contentions, Verizon’s “[s]ervers, hardware, software, and 

services leased, owned, supported, and/or operated by Verizon comprising Verizon’s wireless 

network services functionality.” Dkt. 72-2, at 1 (Nov. 1, 2023 Ltr. from Verizon to Headwater). 

Verizon asserted that “[n]o specific servers or other network hardware or software are identified” 

and “nor are any network elements mentioned or depicted in the charts.” Id. 

In response, Headwater—at Verizon’s request and with its consent—served amended 

infringement contentions on January 12, 2024. In those amended contentions, Headwater 

identified, by model or function name, and with citations to Verizon’s confidential technical 

document production, the servers and server-related functionality it was accusing for both the ’543 

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and '042 patents: 

Dkt. 72-5, at 4-5 (Headwater's January 12, 2024 Amended Infringement Contentions). 

The terms appear 

in Verizon's confidential technical documents describing device-side requirements for features 

accused of infringement here. The terms refer to specific functions performed by Verizon' s servers 

in provisioning, controlling, and providing telecommunications service to mobile phones. For 

example, - means which is a set of server-side 

functionality offered and performed by Verizon for controlling vru·ious aspects of a mobile device 

that is provisioned on the Verizon telecommunications network. See, e.g., Ex. 1, at VZNHW0 177281. As another example, - means which is a 

subset of device management features falling under Verizon' s- umbrella. See id. at VZNHW0 177288. These are specific features Verizon provides with computer servers under its control. 

Not only did Headwater specifically identify them by name as infringing, it cited Verizon 

documents describing them. 

2. January 2024 - June 2024: Verizon Identifies No Problems with 

Headwater's January 2024 Amended Infringement Contentions 

When Headwater served its Amended Infringement Contentions on Januaiy 12, 2024 

(again, specifically at Verizon's request), Headwater understood that to be the end of the matter. 

The case progressed for the next five months, during which the parties served and responded to 

discovery requests and produced relevant documents, with Headwater continuing to build its case 

from the discovery provided but finding over time that Verizon was withholding highly relevant 

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discovery materials. Notably, on March 19, 2024, Headwater filed an unopposed motion for leave 

to amend its infringement contentions, in order to ensure that its January 12, 2024 contentions 

were its operative P.R. 3-1 contentions. By this point, the last time Verizon had complained about 

Headwater’s contentions in any substantive way was in November 1, 2023 (see Dkt. 72-2), which 

Headwater, with Verizon’s assent, cured with its January 12, 2024-dated amended contentions. 

Then, on June 12, 2024, Verizon sent a letter that complained about new supposed 

deficiencies in Headwater’s infringement contentions. See Dkt. 72-7. In its letter, Verizon 

acknowledged that Headwater’s identification of the 

 server-side functionalities were responsive to Verizon’s earlier 

complaints about how Headwater had mapped the Asserted Patents’ server-side limitations. 

Nonetheless, Verizon continued to assert that those server-side functions were outside the scope 

of the case because “none of these newly accused elements appears anywhere in Headwater’s 

claim charts.” Id. at 3. And, in its recently-filed pending motion to strike Headwater’s infringement 

contentions, Verizon says Headwater’s contentions map only “general network-side technologies” 

in a “superficial and incomplete manner, without explaining how they meet each claim limitation.” 

Dkt. 72, at 7. 

First, as an initial matter, Verizon’s current argument cannot be reconciled with its past 

assent to Headwater’s January 12, 2024 amended contentions and its five months of silence 

following the service of those contentions. A “defendant cannot lay behind the log until late in the 

case and then claim that it lacks notice as to the scope of the case or the infringement contentions.” 

Orion IP, LLC v. Staples, Inc., 407 F. Supp. 2d 815, 818 (E.D. Tex. 2006). Verizon should not be 

allowed to feign ignorance as a basis to continue refusing to produce any of its server-side source 

code and documentation – this is classic litigation-by-ambush prohibited by the Rules. 

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Second, Verizon’s current argument cannot be reconciled with Headwater’s infringement 

claim charts. That Headwater plainly disclosed and identified the use by Verizon of its servers in 

providing the server-side limitations of the ’543 and ’042 patents cannot be reasonably disputed. 

For example, Headwater asserts in its ’042 patent claim chart, for claim 1[c], that: 

the Accused Instrumentalities specifically transmit traffic control-related 

instructions to mobile devices in the wireless access network based on type of 

traffic, type of subscriber plan, and priority levels for types of data and/or subscriber 

account type based on the Accused Instrumentalities’ inspection of traffic to and 

from the device and the account associated with the device 

Ex. 2, at 17-19 (emphasis added). This description clearly encompasses server-side device 

management functionality—which corresponds directly to the server-side functionality (such as 

) that Headwater identified, by name, in its 

January 12, 2024 contentions. 

And, for the ’543 patent, Headwater mapped claim limitation 1[e], which requires 

“process[ing] the first service plan component and the second service plan component to create a 

network provisioning instruction set in accordance with a prioritization of the first traffic 

classification filter over the second traffic classification filter,” to how Verizon is able to offer 

different levels of telecommunications service on a per-subscriber basis—i.e., a given subscriber 

plan can have one particular priority level, entitling it priority to network access and high-speed 

data; another subscriber can have a lower priority level; yet another subscriber might purchase a 

“data boost” feature, which temporarily increases speed and data allotment for that subscriber’s 

access to the Verizon network. See, e.g., Ex. 3, at 18-22 (“the Accused Instrumentalities 

specifically transmit traffic control related instructions to mobile devices in the wireless access 

network based on type of traffic, type of subscriber plan, and priority levels for types of data and/or 

subscriber account type based on the Accused Instrumentalities’ inspection of traffic to and from 

the device and the account associated with the device”). Subscriber-related features, including 

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features purchased by subscribers, are provided by Verizon through its servers using, among other 

things, Verizon' s server-side functions: 

Ex. 1, at VZN-HW0l 77461. This is not a generic mapping of"general network-side technologies" 

in a "superficial and incomplete manner," as Verizon alleges in its motion to strike. Headwater 

provided specific identification of the infringing features, including by name and with a fulsome 

narrative description. 

B. Verizon's Failure to Produce the Required Technical Information and 

Source Code Is Prejudicial and Without Justification 

Having identified Verizon' s infringement through performance of these claim elements, 

and Headwater is entitled to take discovery of technical documents and source code detailing the 

specific operations within the accused systems that perfo1m the claimed functionality. Verizon has 

not meaningfully produced technical documentation relating to Verizon' s server-side features, 

including those specifically identified by name in Headwater's contentions. Until its June 12, 2024 

letter, Verizon raised no issues with Headwater's January 12, 2024 identification of the specific 

server-side functions as infringing the '543 and '042 patents. 

Nor has Verizon aiiiculated any burden it might believe it would have if forced to produce 

relevant source code and technical documentation. The features and functions Headwater accuses 

are a finite set. Verizon has already collected and produced relevant documentation for the deviceside of the infringement theory, which is how Headwater was able to identify in the first place the 

confidential names of the server-side features it believed were involved in infringement. 

The rules do not pe1mit Verizon to curate its evidence. The Patent Rules require fulsome 

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and unedited discovery of technical documentation and source code so that Headwater can build, 

evaluate, and prove its case. Verizon’s failure to produce the information in question violates the 

requirements of the local patent rules and this Court’s Docket Control Order and Discovery Order. 

Verizon’s failure to produce has substantially prejudiced Headwater in discovery and development 

of its case, including because months of discovery have passed. 

IV. CONCLUSION 

Headwater thus respectfully requests that the Court compel Verizon to immediately 

produce non-public technical documentation, including source code, for the accused server-side 

functionalities identified in Headwater’s January 12, 2024 Infringement Contentions. 

 

Dated: August 21, 2024 Respectfully submitted, 

/s/ Marc Fenster 

Marc Fenster 

CA State Bar No. 181067 

mfenster@raklaw.com 

Reza Mirzaie 

CA State Bar No. 246953 

rmirzaie@raklaw.com 

Brian Ledahl 

CA State Bar No. 186579 

bledahl@raklaw.com 

Ben Wang 

CA State Bar No. 228712 

bwang@raklaw.com 

Adam Hoffman 

CA State Bar No. 218740 

ahoffman@raklaw.com 

Dale Chang 

CA State Bar No. 248657 

dchang@raklaw.com 

Paul Kroeger 

CA State Bar No. 229074 

pkroeger@raklaw.com 

Neil A. Rubin 

CA State Bar No. 250761 

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nrubin@raklaw.com 

Kristopher Davis 

CA State Bar No. 329627 

kdavis@raklaw.com 

James S. Tsuei 

CA State Bar No. 285530 

jtsuei@raklaw.com 

Philip Wang 

CA State Bar No. 262239 

pwang@raklaw.com 

Amy Hayden 

CA State Bar No. 287026 

ahayden@raklaw.com 

Jason M. Wietholter 

CA State Bar No. 337139 

jwietholter@raklaw.com 

Qi Peter Tong 

TX State Bar No. 24119042 

Email: ptong@raklaw.com

RUSS AUGUST & KABAT 

12424 Wilshire Blvd. 12th Fl. 

Los Angeles, CA 90025 

Telephone: 310-826-7474 

Andrea L. Fair 

WARD, SMITH & HILL, PLLC 

1507 Bill Owens Parkway 

Longview, Texas 75604 

Telephone: 903-757-6400 

andrea@wsfirm.com 

Attorneys for Plaintiff,

Headwater Research LLC

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CERTIFICATE OF SERVICE 

I hereby certify that on August 21, 2024, I electronically filed the foregoing document with 

the Clerk of the Com1 for the Eastern District of Texas under seal, and served counsel of record 

with a copy via electronic email. 

Isl Marc Fenster 

Marc Fenster 

CERTIFICATE OF CONFERENCE 

On August 1, 2024, counsel for Headwater, including Marc Fenster as lead counsel and 

Andrea Fair as local counsel, met and conferred with counsel for Verizon, including Kate 

Dominguez as lead counsel and Deron Dacus as local counsel. This followed a prior conference 

in which counsel for Headwater discussed the issues set forth in this motion with Verizon. The 

parties were unable to reach agreement and have reached an impasse, leaving an open issue for the 

Court to resolve. This motion is opposed by Verizon. 

Isl Marc Fenster 

Marc Fenster 

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