Sur-Reply ISO of Opposition to Motion to Dismiss i

THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

SYMBOLOGY INNOVATIONS, LLC,

Plaintiff,

v.

VALVE CORPORATION,

GEARBOX SOFTWARE, L.L.C.,

Defendants.

 CASE NO. 2:23-cv-419-JRG

 JURY TRIAL DEMANDED

SUR-REPLY IN SUPPORT OF OPPOSITION TO VALVE CORPORATION’S MOTION 

TO DISMISS UNDER RULE 12(B)(3) 

Case 2:23-cv-00419-JRG Document 69 Filed 05/09/24 Page 1 of 8 PageID #: 1579
Sur-Reply ISO of Opposition to Motion to Dismiss 1

Plaintiff files this sur-reply in support of its opposition to Valve Corporation’s motion to 

dismiss under Rule 12(b)(3).1 The operative complaint is the Third Amended Complaint filed on

March 22, 2024. Dkt. 52 (The operative complaint or “Complaint” hereinafter). As explained in 

the operative complaint, and ignored by Valve in its Reply, venue is proper over Defendant Valve 

Corporation under Section 1400(b) due to it ratifying its Valve Steam PC Cafes, that would not 

exist but for the support of defendant Valve. In addition, to providing step by step instructions to 

the employees at the STEAM PC Cafes, Valve provides support to its brick and mortar licensed 

PC cafes locations in the Collin County (this District). And lastly, due to Valve’s joint 

development of games with Gearbox Software, located within this district.

With respect to Valve’s HTC Vive VR headset, an accused product in the SPIS litigation, 

along with the software that connects and allows for gaming controllers to work with Valve’s 

gaming platform, STEAM. Valve directs and controls how to use its Virtual Reality headsets that 

contains software that connects with Valve’s STEAM gaming platform. This is the operating 

system and does overlap completely with the Display Technology accused instrumentalities in the

prior settlement, contrary to Valve’s strained attempt to distinguish that accused instrumentality in 

its Reply. STEAM uses Equinix data centers located in Dallas, Texas within 10 miles of the 

Eastern District of Texas to support the STEAM PC Cafes

1 Counsel for Plaintiff requests a hearing on this Motion to Dismiss based on Venue. Defendant 

ignores the operative complaint, then without citing any case law ridicules Plaintiff’s Opposition 

for relying on and incorporating by reference the detailed Operative Complaint. Reply at fn1. 

Having recently amended multiple times itself (Exhibit 11 to the Operative Complaint (Dkt. 52-

11)), Defendant was well aware of the weakness in its own argument. Plaintiff explained it to 

Defendant. Exhibit A to Declaration of Randall Garteiser, filed concurrently. Defendant knew 

this when it proceeded to file a barrage of motions on this Court without complying with Rule 

7(h) such that Plaintiff would be time strapped to respond three (3) motions all on April 22, 

2024. Dkt. Nos. 61, 62, 63 (three oppositions filed by Plaintiff on April 22, 2024). And 

Defendants mislead the Court has Plaintiff attempting to not file another pleading under seal to 

protect Defendants’ overly designated document production. Plaintiff did so by incorporating 

the operative complaint (Dkt. 52) by reference that was filed under seal due solely to 

Defendant’s designations under the Protective Order. 

Case 2:23-cv-00419-JRG Document 69 Filed 05/09/24 Page 2 of 8 PageID #: 1580
Sur-Reply ISO of Opposition to Motion to Dismiss 2

I Because of the GSALA – Valve Waived its Venue Objection.2

A. Valve’s Concessions – Personal Jurisdiction and Waiver of Section 1400(b).

Valve’s Reply concedes Plaintiff’s case law indicating “a forum selection clause can 

operate as a waiver of § 1400(b).” Dkt. 63 at 2 (citing 5 Annot. Patent Digest (Matthews), § 

36:152.40 (2020)); Sundesa, LLC v. IQ Formulations, LLC, Case No. 2:19-cv- 06467-AB-MAA, 

2020 WL 8125541, at *2 (C.D. Cal. Aug. 19, 2020)). In doing so, Valve also concedes that 

personal jurisdiction is proper in this District and tellingly fails to address the plain statement in 

the Operative Complaint that venue is proper in this District due to Valve’s waiver of Section 

1400(b). Dkt. 52 at ¶ 66.

Figure 1 – Dkt. 52 at ¶ 66.

B. Heavy Burden To Overcome The Forum Selection Clause.

Valve Reply’s does not aid Valve in meeting its burden to overcome the operative 

complaints’ (Dkt. 52 – sealed) detailed explanation of as to why the forum selection clause in the 

GSALA (complete copy of GSALA is located at Dkt. 63-1) applying to these parties. 

Valve’s Reply contends no waiver of venue exists under the GSALA because (1) Valve

has not raised a licensing defense, (2) Plaintiffs’ invitation to waive Valve’s licensing defenses 

“were divorced from any discussion or dispute regarding the GSALA and cannot be used to 

2 Even if Venue is waived by the Defendant, Plaintiff has the burden to prove the personal 

jurisdiction is proper over a Defendant. Plaintiff did so in its Operative Complaint to ensure this 

Court of limited jurisdiction has not only general but specific personal jurisdiction over 

Defendant Valve Corporation. Dkt. 52 at ¶¶ ???

Case 2:23-cv-00419-JRG Document 69 Filed 05/09/24 Page 3 of 8 PageID #: 1581
Sur-Reply ISO of Opposition to Motion to Dismiss 3

fabricate a nexus to the GSALA,” and (3) Plaintiff contradicts itself by saying the GSALA is the 

same nexus of operative facts yet claiming the Patents-in-Suit now were not licensed under the 

GSALA. Valve’s arguments are rebutted below.

1. The Operative Complaint States the GSALA Applies and that Valve Does Not 

Have a License.

Whether Valve has raised a ‘licensing defense’ is asking the wrong question; it is a red 

herring argument. The operative complaint controls the inquiry on a motion to dismiss, and it 

recites “There is presently a dispute amongst some of those parties to the GSALA given the 

definition of “parties” used in the GSALA by Valve Corporation.” Dkt. 52 at ¶ 57 (citing (Exhibit 

2)). 

Figure 2 – Dkt. 52 at ¶¶ 57, 58. 

Case 2:23-cv-00419-JRG Document 69 Filed 05/09/24 Page 4 of 8 PageID #: 1582
Sur-Reply ISO of Opposition to Motion to Dismiss 4

The operative complaint explains that because the of the definition of “Licensed Products”

there is a case or controversy as to whether Valve has a license due to the GSALA. Dkt. 52 ¶ 58, 

Exhibit 2 to the operative complaint at ¶ 1.7 (definition of licensed products). 

Also, the operative complaint contends that Valve does not have a license to infringe the 

Plaintiff’s asserted patents, including under the GSALA. The operative complaint explains why 

the GSALA applies because its involves the same parties. Dkt. 52 at ¶¶ 12, 15, 16, 17, 18, 19, 20, 

21, 22, 23, 24, 25, 27, 57, 58, 62, 120, 149; TAC Figures 1, 2, figure at page 6.

Here, all of the parties (Valve, PAM, Symbology, QTI and SPIS) are bound by the SALA 

even if they not signature parties due to the broad definitions of affiliates and controlling interest 

used in the GSALA that the parties bargained for in their agreement.

Moreover, Valve knows that non-signatures defined as “affiliates” are “parties” under the 

GSALA. Indeed, Valve told a court in the Western District of Washington that a non-signatory 

was bound by the GSALA by a later assignment. Exhibit 1, at ¶ 69; Figure 1.

Figure 3 – Exhibit 1 excerpt of Paragraph 69 of Valve’s Second Amended Complaint, Case 2:23-

cv-01016-JNW, Dkt. 38 (W.D. Wash. January 16, 2024).

Valve’s Reply attempts to gloss over the detailed analysis in the operative complaint as to 

why the GSALA applies here. Plaintiff cannot do better in an opposition than it did in the operative 

complaint. See e.g. Dkt. 52 at ¶¶ 57, 58. It is disingenuous for Valve to tell this Court that Plaintiff

is not a named party, when Valve told another court in January of 2024 that Rothschild Broadcast 

Distribution Systems, LLC (“RBDS”) was bound by the GSALA even though it was not a “party”

to the GSALA because of a later patent assignment. Exhibit 1 at ¶ 69. 

Valve concedes that it already has a bargained for exchange with Patent Asset 

Management, LLC (“PAM”), the parent company of Display Technologies, Symbology 

Case 2:23-cv-00419-JRG Document 69 Filed 05/09/24 Page 5 of 8 PageID #: 1583
Sur-Reply ISO of Opposition to Motion to Dismiss 5

Innovations, as well as, QTI and SPIS. Thus, demonstrating the importance of the GSALA to the 

parties. See Exhibit 1 at ¶ 41; ¶ 44. 

2. Plaintiff’s email was not divorced from the GSALA.

Valve’s reply states that Plaintiff’s offer to waive Valve’s licensing defenses “were 

divorced from any discussion or dispute regarding the GSALA and cannot be used to fabricate a 

nexus to the GSALA.” Reply at 5. This is not true. The entire context was about the Global 

Settlement and Licensing Agreement, ergo GSALA. Exhibit 1 to Valve’s Reply undermines 

Valve’s statements made to this Court. See Dkt. 66-2 (excerpt below).

Figure 4 – Dkt. 66-2 excerpt asking if Valve will waive a licensing defense under the GSALA.

Thus, Valve has not met its burden. See Atl. Marine Constr. Co. v. United States Dist. 

Court, 571 U.S. 49, 63, 134 S.Ct. 568, 187 L.Ed.2d 487 (2013).

3. GSALA is the Same Nexus of Operative Facts.

Valve’s Reply argues that plaintiff contradicts itself by saying the “GSALA is the same 

nexus of operative facts yet claiming the Patents-in-Suit now were not licensed under the 

GSALA.” As explained in the operative complaint (figure 2 above) a dispute exists about whether 

Valve has a license to the accused instrumentalities in this case as they are include the STEAM 

gaming platform, even the VR headsets infringe because of their connection with the STEAM 

gaming platform. Also, Valve attempts to distinguish the accused instrumentalities is not on point. 

The definition of “Licensed Products” controls, and that is a definition contained in the GSALA 

that is controlling between the parties. 

II. Plaintiff Is Not Abandoning Its Additional Arguments.

The operative complaint stands and speaks for itself. The burden is on Valve, not 

Plaintiff. Here, Valve has not met its burden and its motion should be denied. Jackson v. Payday 

Case 2:23-cv-00419-JRG Document 69 Filed 05/09/24 Page 6 of 8 PageID #: 1584
Sur-Reply ISO of Opposition to Motion to Dismiss 6

Financial, LLC, 764 F.3d 765, 776 (7th Cir. 2014); FCX Solar, LLC v. FTC Solar, Inc., No. 6:21-

CV-548-ADA, 2021 WL 4953912, at *3 (W.D. Tex. Oct. 25, 2021).

III. CONCLUSION

Venue is proper over Valve Corporation. Thus, the Court should deny Valve Corporation’s 

motion to dismiss under Rule 12(b)(3) filed at Docket No. 56.

May 8, 2024 Respectfully submitted,

/s/ Randall Garteiser

Christopher A. Honea

 Texas Bar No. 24059967

 chonea@ghiplaw.com

Randall Garteiser

 Texas Bar No. 24038912

 rgarteiser@ghiplaw.com

M. Scott Fuller

 Texas Bar No. 24036607

 rgarteiser@ghiplaw.com

GARTEISER HONEA, PLLC

119 W. Ferguson Street

Tyler, Texas 75702

Telephone: (903) 705-7420

Facsimile: (903) 405-3999

COUNSEL FOR PLAINTIFF

CERTIFICATE OF SERVICE

The undersigned certifies that on May 8, 2024, the foregoing document was electronically 

filed with the Clerk of the Court using the CM/ECF system and all counsel of record will receive 

an electronic copy via the Court’s CM/ECF system.

Case 2:23-cv-00419-JRG Document 69 Filed 05/09/24 Page 7 of 8 PageID #: 1585
Sur-Reply ISO of Opposition to Motion to Dismiss 7

/s/ Randall Garteiser

Randall Garteiser

Case 2:23-cv-00419-JRG Document 69 Filed 05/09/24 Page 8 of 8 PageID #: 1586