EXHIBIT E

Case 2:23-cv-00352-JRG-RSP Document 83-5 Filed 09/05/24 Page 1 of 5 PageID #: 6136
Kate Dominguez

Direct: +1 212.351.2338

Fax: +1 212.716.0839

KDominguez@gibsondunn.com

 

Gibson, Dunn & Crutcher LLP

200 Park Avenue

New York, NY 10166-0193

Tel 212.351.4000

gibsondunn.com

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June 12, 2024 

VIA E-MAIL

Marc Fenster

Russ August & Kabat

12424 Wilshire Boulevard, 12th Floor

Los Angeles, CA 90025

Re: Headwater Research LLC v. Cellco Partnership d/b/a Verizon Wireless, et al., No. 

23-cv-00352 (E.D. Tex.)

Dear Marc:

We write on behalf of Defendants Cellco Partnership d/b/a Verizon Wireless and Verizon 

Corporate Services Group, Inc. (collectively, “Verizon”) regarding continued deficiencies in

Plaintiff Headwater Research LLC’s (“Headwater”) infringement contentions. 

We have reviewed Headwater’s January 12, 2024 Amended Disclosure of Asserted Claims 

and Infringement Contentions and accompanying claim charts (collectively, the “Infringement 

Contentions”). Both Headwater’s Infringement Contentions and claim charts remain deficient 

in multiple respects, including with respect to virtually all of the issues Verizon raised prior to 

Headwater’s amendment in our November 1 and December 13, 2023 letters and during the 

parties’ January 12, 2024 conference. See Nov. 1, 2023 K. Dominguez Ltr. at 1–2; Dec. 13, 

2023 K. Dominguez Ltr. at 2. 

By way of illustration only, Headwater’s Infringement Contentions contravene Local Patent 

Rule 3-1 in at least the following ways: 

No “Clear Linkage” Between Cited Evidence and Asserted Claim Elements. 

Headwater’s Infringement Contentions are devoid of explanation as to how the cited evidence 

in Headwater’s claim charts purportedly maps to the elements of the Asserted Claims. P.R. 3-1 

requires Headwater to “identify[] specifically where each element of each asserted claim is 

found within each Accused Instrumentality,” but Headwater’s claim charts comprise hundreds 

of pages of screenshots and block quotes with no such explanation. At most, Headwater’s 

claim charts simply parrot the language of the claim elements without providing any 

substantive explanation as to which citations purportedly align with which claim elements. 

This is insufficient to meet the requirements of P.R. 3-1. See, e.g., Traxcell Techs., LLC v. 

Huawei Techs. USA Inc., No. 17-CV-00041-RWS-RSP, 2017 WL 6559256, at *4 (E.D. Tex. 

Dec. 21, 2017) (striking P.R. 3-1 contentions where “[t]he claims are set out, and much 

evidence concerning the accused instrumentalities is included, but no clear linkage is 

established between them”). 

Case 2:23-cv-00352-JRG-RSP Document 83-5 Filed 09/05/24 Page 2 of 5 PageID #: 6137
Marc Fenster

Russ August & Kabat

June 12, 2024 

Page 2 

 

No Assertion of Representativeness. Headwater accuses well over 200 separate 

products of infringement but has provided claim charts for at most a dozen of them. 

Specifically, Headwater has charted five accused products for each of the ’541 and ’613 

Patents,1 and provided only a single claim chart for the ’042 and ’543 Patents. P.R. 3-1(c) 

requires “[a] chart identifying specifically where each element of each asserted claim is found 

within each Accused Instrumentality.” Headwater never indicates that this handful of products 

is somehow representative of hundreds of others that Headwater elected to accuse. But even 

if that was Headwater’s intention, Headwater has not even attempted to “identify how each 

accused product is technically or functionally equivalent to a charted product” as required by 

P.R. 3-1. UltimatePointer, LLC v. Nintendo Co., No. 11-CV-496, 2013 WL 12140173, at *3 

(E.D. Tex. May 28, 2013). Headwater’s failure to follow the Local Patent Rules leaves 

Verizon with no realistic means of efficiently guiding discovery. 

No Effort to Distinguish Between Accused Products. Similarly, Headwater’s 

contentions improperly mix and match accused products when addressing different elements 

within a single claim, without showing all claim limitations are met for any particular accused 

product. For example, Headwater’s claim charts for the ’541 and ’613 Patents refer to “Data 

Saver,” “Power Saver,” “Doze Mode,” “App Standby,” “Adaptive Battery,” and 

“JobScheduler,” but cherry-pick disparate pieces from each of these distinct functionalities 

throughout its infringement allegations for the asserted claims. Headwater’s contentions for 

the ’543 and ’042 patents likewise improperly combine dissimilar aspects of policies and plans 

offered by Verizon as well as devices and network components operated or sold by Verizon. 

P.R. 3-1 requires Headwater to disclose its infringement theories as specifically as possible, 

but Headwater’s current mix-and-match approach simply obfuscates Headwater’s theories. 

No Attempt to Chart the Majority of Asserted Claims. For more than 200 asserted 

dependent claims, Headwater’s claim charts do not include any unique allegations at all, and 

instead refer solely to evidence cited for other asserted claims. P.R. 3-1 requires Headwater 

to specifically identify “where each element of each asserted claim is found within each 

Accused Instrumentality,” including “all elements of any dependent claim.” Traxcell Techs., 

No. 17-CV-00042-RWS-RSP, 2017 WL 11843292, at *1. Verizon has already raised this 

glaring deficiency in Headwater’s contentions previously. See Feb. 2, 2024 K. Dominguez 

Ltr. at 1 (“For the vast majority of the asserted dependent claims, Headwater’s contentions 

simply refer to the evidence cited for other asserted claims, without more.”). Headwater’s 

complete failure to provide any explanation of its infringement theories—or evidence 

1 Specifically, the “iPhone 15 Pro” from Apple, the “Galaxy S22” from Samsung, the “Pixel 7 

Pro” from Google, the “edge+ 5G” from Motorola, and the “DuraForce Ultra 5G UW” from 

Kyocera. 

Case 2:23-cv-00352-JRG-RSP Document 83-5 Filed 09/05/24 Page 3 of 5 PageID #: 6138
Marc Fenster

Russ August & Kabat

June 12, 2024 

Page 3 

 

thereof—for the vast majority of asserted claims plainly contravenes P.R. 3-1. See, e.g.,

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

at *2 (E.D. Tex. May 10, 2017); Rapid Completions LLC v. Baker Hughes Inc., No. 6:15-CV724, 2016 WL 3407688, at *5–6 (E.D. Tex. June 21, 2016). 

No Identification of Purportedly Accused Network Components. Finally, 

Headwater’s Infringement Contentions still do not appropriately identify what network-side 

components Headwater purports to accuse. Verizon first raised, more than six months ago, 

that “[n]o specific servers or other network hardware or software are identified, nor are any 

network elements mentioned or depicted in the charts attached to Headwater’s contentions.” 

See Nov. 1, 2023 K. Dominguez Ltr. at 1. In its amended Infringement Contentions, 

Headwater has added “OTADM,” “PROPOTA,” “VZOTADM,” “FOTA,” “SDM,” and “DM” 

as alleged examples of the accused “[s]ervers, hardware, software, and services leased, owned, 

supported and/or operated by Verizon.” E.g. Infringement Contentions at 2. 

However, none of these newly accused elements appears anywhere in Headwater’s claim 

charts. This is despite the fact that (1) Headwater’s failure to identify and chart any networkside products was discussed at length between the parties prior to amendment, and (2) 

Headwater was already in possession of Verizon’s technical production for months prior to 

amending its contentions. Headwater’s Infringement Contentions cannot possibly comply 

with P.R. 3-1 where, as here, Headwater has not even attempted to chart the products which it 

purports to accuse. Dkt. 235 at 2, Uniloc 2017 LLC v. Google LLC, No. 18-CV-497-JRGRSP, (E.D. Tex. Mar. 27, 2020) (striking uncharted products from infringement contentions). 

* * * 

Headwater’s amendment to its Infringement Contentions failed to address rudimentary 

deficiencies even after Verizon identified them specifically to Headwater. Please confirm that 

Headwater will withdraw its infringement allegations related to the issues identified above for 

failure to comply with Local Patent Rule 3-1, even after an opportunity to amend. If Headwater 

refuses to do so, please provide times when you are available for a lead and local conference 

on these deficiencies. 

 

Case 2:23-cv-00352-JRG-RSP Document 83-5 Filed 09/05/24 Page 4 of 5 PageID #: 6139
Marc Fenster

Russ August & Kabat

June 12, 2024 

Page 4 

 

Sincerely,

/s/ Katherine Q. Dominguez

Katherine Q. Dominguez 

Case 2:23-cv-00352-JRG-RSP Document 83-5 Filed 09/05/24 Page 5 of 5 PageID #: 6140