Case 6:15-cv-01095-RWS Document 541 Filed 07/27/17 Page 1 of 8 PageID #: 233469
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`PAPST LICENSING GMBH & CO. KG,
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`
`§
`§
`§
`§ Civil Action No. 6:15-cv-1095
`§
`§ JURY TRIAL DEMANDED
`§
`§
`§
`
`PLAINTIFF’S SUR-REPLY TO LG ELECTRONICS, INC., LG ELECTRONICS U.S.A., INC.,
`AND LG ELECTRONICS MOBILECOMM U.S.A., INC.’S MOTION TO EXCLUDE
`OPINIONS AND TESTIMONY OF ROBERT ZEIDMAN
`
`Samsung Electronics Co., Ltd. et al.
`Ex 1015, p. 1
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`

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`Case 6:15-cv-01095-RWS Document 541 Filed 07/27/17 Page 2 of 8 PageID #: 233470
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`Plaintiff respectfully files this Sur-reply to LG’s Motion to Exclude Opinions and
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`Testimony of Zeidman (Dkt. 426).1
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`ARGUMENT
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`I.
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`Zeidman’s Opinions for the “A Processor” Limitations Are Admissible.
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`LG does not and cannot dispute that the claim construction principle on which Zeidman
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`relies—i.e., “a” means “at least one” or “one or more”—has been described by the Federal
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`Circuit and this District as “a rule.” See, e.g., Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512
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`F.3d 1338, 1342 (Fed. Cir. 2008); Imperium IP Holdings (Cayman), Ltd. V. Samsung Elect. Co.,
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`No. 4:14-cv-371, 2015 WL 3761904 (E.D. Tex. June 16, 2015).
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`Furthermore, LG has not proven and cannot prove an exception to this general rule—
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`there is no disclaimer, no prosecution history estoppel, and no “clear intent” in the Patents or
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`during prosecution to depart from the “rule” that “a” means “one or more.” See Dkt. 463 at 4-7.
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`LG’s continued reliance on In re Varma, 816 F.3d 1352 (Fed. Cir. 2016) is misplaced.
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`The claim language here is different than the language in Varma, and the colloquial “two dogs”
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`analogy in Varma is not applicable here. The claim limitation at issue in Varma was “a
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`statistical analysis request corresponding to two or more selected investments.” Id. at 1356
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`(emphasis added). The Federal Circuit concluded that the claim “language on its face excludes
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`Interpretation 1”—i.e., “a request that calls for a statistical analysis of a single investment.” It
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`held instead that “[a] single request must correspond to at least two investments.” Id. at 1362
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`(emphasis added). Here, there is no similar “corresponding,” prescribed ratio, or any other
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`language that would overcome the effect of the general rule of claim construction applicable
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`here. See, e.g., Dkt. 463 at 4-6.
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`1 Unless otherwise noted, all capitalized terms have the same meaning set forth in Papst’s Response to LG’s Motion
`(Dkt. 463).
`
`1
`
`Samsung Electronics Co., Ltd. et al.
`Ex 1015, p. 2
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`

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`Case 6:15-cv-01095-RWS Document 541 Filed 07/27/17 Page 3 of 8 PageID #: 233471
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`Nevertheless, LG reasserts that a single processor “must be configured to do all of the”
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`actions set forth in the “wherein” limitations that follow the “a processor” limitation. Dkt. 507 at
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`1-2; Dkt. 426 at 7-8. But the Federal Circuit has previously considered and rejected an argument
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`substantively similar to LG’s argument. See 01 Communique Lab., Inc. v. LogMeIn, Inc., 687
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`F.3d 1292 (Fed. Cir. 2012).
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`In 01 Communique, the district court had determined that the asserted claims required “a
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`‘locator server computer’ that includes a ‘location facility’” and further construed “location
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`facility” as capable of performing four functions:
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`a component of a locator server computer that itself: 1) creates communication
`sessions between a remote computer and personal computer; 2) receives a request
`for communication with the personal computer from the remote computer; 3)
`locates the personal computer (and “determines the then location of the personal
`computer”); and 4) creates a communication channel between a remote computer
`and the personal computer.
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`Id. The district court then held that “LogMeIn d[id] not infringe the [Asserted] Patent” because
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`“‘the LogMeIn system does not contain any component that itself performs all the four functions
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`required of the location facility under the Court’s construction of the term.’” Id.
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`As described by the Federal Circuit, the issue on appeal in 01 Communique was “whether
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`the location facility must be contained entirely on a single locator server computer as held by the
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`district court and asserted by LogMeIn, or whether it may be distributed among multiple locator
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`server computers as asserted by 01 Communique.” Id. at 1296. In overturning the district court,
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`the Federal Circuit first stated that the district court’s conclusion and LogMeIn’s arguments were
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`“at odds with our well-established precedent” that “the words ‘a’ or ‘an’ in a patent claim carry
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`the meaning of ‘one or more.’” Id. at 1297 (citing TiVO, Inc. v. EchoStar Commc’ns Corp., 516
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`F.3d 1290, 1303 (Fed. Cir. 2008)). It further concluded that there was no evidence of the clear
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`intent, disclaimer, or prosecution history estoppel needed to depart from that general claim
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`2
`
`Samsung Electronics Co., Ltd. et al.
`Ex 1015, p. 3
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`

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`Case 6:15-cv-01095-RWS Document 541 Filed 07/27/17 Page 4 of 8 PageID #: 233472
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`construction rule. Id. at 1297-1299. Ultimately, the Federal Circuit agreed that the “location
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`facility” must perform the four functions identified by the district court, but it held that “the
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`locator server computer may comprise one or more computers, and the location facility may be
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`distributed among one or more locator server computers.” Id. at 1299-1300.
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`Accordingly, whereas LG’s arguments misapply the applicable law, Zeidman’s opinions
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`and proffered testimony regarding the “a processor” limitations are based on the correct legal
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`standards. Those opinions are admissible. And LG’s Motion should be denied.
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`II.
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`Zeidman’s Opinions for the “Customary” Terms Are Admissible.
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`Zeidman has not and will not present to the jury contradictory opinions regarding the
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`terms “still imaging device” or “mass storage device.” His opinion is and has always been that
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`the Accused Products are neither still imaging devices nor mass storage devices but instead are
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`cell phones that communicate with the host computer by identifying themselves as still image
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`devices or mass storage devices. With regard to these terms, this is the only opinion set forth in
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`Zeidman’s report, the only opinion Zeidman testified to during his deposition, and the only
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`opinion Zeidman and Papst intend to present to the jury.
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`LG’s assertion in its Reply that Zeidman has “admitted” the Accused Products are still
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`imaging devices or mass storage devices is wrong. See Dkt. 507 at 2-3. Every one of the alleged
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`“admissions” that make up the basis of LG’s Motion are out-of-context quotes from the tens of
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`thousands of pages of claim charts that were attached to Zeidman’s report. In context, these
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`quotes are invariably surrounded by other language clarifying that the Accused Products merely
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`identify themselves as mass storage devices or still imaging devices. For example, LG points to
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`the caption to an image of LG’s user manual (see Dkt. 507 at 2 citing Dkt. 405-2 at ZEIDMAN-
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`LG-009252). But that caption (and the other captions that LG takes out of context) is under a
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`section of the claim chart explicitly titled: “The Accused Device identifies itself as a mass
`3
`
`Samsung Electronics Co., Ltd. et al.
`Ex 1015, p. 4
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`

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`Case 6:15-cv-01095-RWS Document 541 Filed 07/27/17 Page 5 of 8 PageID #: 233473
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`storage device.” Ex. 4 at ZEIDMAN-LG-009251. In full, that section describes the steps by
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`which the cellphone “identifies itself” as a mass storage device. See id. at ZEIDMAN-LG-
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`009251-9254. Likewise, in the analysis of Claim 1(e) (which includes the key limitation
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`“wherein the analog data acquisition device is not within the class of devices”), LG’s out-of-
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`context alleged “admission” is followed directly by Zeidman’s actual and consistent conclusion:
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`“The above steps are independent of the actual analog source of the data. The Accused Device is
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`not actually within the class of devices device, but is a cellphone.” Id. at ZEIDMAN-LG-
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`009284-9285.
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`Contrary to LG’s mischaracterizations (see Dkt. 507 at 3), Zeidman has not opined and
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`Papst has not argued that the Accused Products are still imaging devices in certain
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`circumstances. LG wholly ignores the opening and closing clauses in the sentence “In the
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`Responder/Initiator relationship, the Accused PTP/MTP Products are still imaging devices
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`compliant with PTP for the purpose of transferring photos.” The import of this sentence is
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`precisely that the Accused Products are not still imaging devices, but that they identify and act as
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`such in this one relationship and for this one purpose. That is precisely the in-context thesis of
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`the Zeidman report and the opinion that Zeidman will offer the jury.2
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`The other alleged “admissions” cited by LG likewise occur under headings, above
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`conclusions, and among other sentences that make perfectly clear that the Accused Products are
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`cell phones that merely identify as mass storage devices or still imaging devices. Indeed, while
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`LG makes much of the number of times it or its expert has misconstrued Zeidman’s opinion
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`(“1200 times,” see Dkt. 507 at n.3), it disregards the fact that Zeidman states in some variant that
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`2 Papst referred in its Response to the USB Specification Revisions 2 to demonstrate that, contrary to LG’s assertion
`in its Motion (Dkt. 426 at 11), “a digital camera is a still imaging devices” and one that is supported by the USB
`specification. See Dkt. 463 at 9 & Ex. 3. In its Reply, LG does not deny that the USB specification confirms the
`accuracy of Zeidman’s testimony that a digital camera is a still imaging device. See Dkt. 507 at n.2.
`4
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`Samsung Electronics Co., Ltd. et al.
`Ex 1015, p. 5
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`

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`Case 6:15-cv-01095-RWS Document 541 Filed 07/27/17 Page 6 of 8 PageID #: 233474
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`the Accused Products “identify(ies) as” or “identify(ies) itself to a computer as” or “identify(ies)
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`itself as” a mass storage or still imaging device more than 10,000 times throughout his report.
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`See Declaration of Christopher V. Goodpastor, dated 7/27/17, at ¶ 3.
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`To persist in calling LG’s cited out-of-context phrases “admissions” is absurd. Put
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`simply, it is unmistakable that Zeidman’s opinion is that the Accused Products are cell phones
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`that identify as mass storage or still imaging devices. To the extent that LG found Zeidman’s
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`report ambiguous as a result of the so-called “admissions,” LG had the opportunity to clarify
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`Zeidman’s opinions at deposition. When asked at his deposition whether the Accused Products
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`were mass storage or still imaging devices, Zeidman consistently and unambiguously responded
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`“Actually, no,” “These are smartphones and cell phones.” Dkt. 463-2 at 103:19-22; Dkt. 481-11
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`at 73. If minor phrases in Zeidman’s report—out-of-context, in isolation, and subjected to LG’s
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`motivated misconstruction—are imprecise or ambiguous, then LG may cross examine Zeidman
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`about them. His opinions should not be excluded.3
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`CONCLUSION
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`For all the reasons set forth in Papst’s Response and this Sur-Reply, LG’s Motion to
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`Exclude Opinions and Testimony of Papst’s Expert Zeidman should be denied.
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`3 Likewise, to the extent that the Court believes there is any ambiguity in Zeidman’s report or opinions, Papst should
`be given an opportunity to correct the ambiguity because doing so will not change the substance of the opinions
`Zeidman has offered in this case or the opinions he intends to present to the jury.
`5
`
`Samsung Electronics Co., Ltd. et al.
`Ex 1015, p. 6
`
`

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`Case 6:15-cv-01095-RWS Document 541 Filed 07/27/17 Page 7 of 8 PageID #: 233475
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`Dated: July 27, 2017
`
`By:
`
`Respectfully submitted,
`
` /s/ Christopher V. Goodpastor
`Christopher V. Goodpastor
`State Bar No. 00791991
`Andrew G. DiNovo
`State Bar No. 00790594
`Adam G. Price
`State Bar No. 24027750
`Jay D. Ellwanger
`State Bar No. 24036522
`DINOVO PRICE ELLWANGER LLP
`7000 N. MoPac Expressway, Suite 350
`Austin, Texas 78731
`Telephone: (512) 539-2626
`Facsimile: (512) 539-2627
`Email: cgoodpastor@dpelaw.com
`adinovo@dpelaw.com
` aprice@dpelaw.com
`jellwanger@dpelaw.com
`
`T. John Ward, Jr.
`State Bar No. 00794818
`Claire Abernathy Henry
`State Bar No. 24053063
`Wesley Hill
`State Bar No. 24032294
`WARD, SMITH & HILL, PLLC
`P.O. Box 1231
`Longview, Texas 75606-1231
`Telephone: (903) 757-6400
`Facsimile: (903) 757-2323
`Email: jw@wsfirm.com
` claire@wsfirm.com
` wh@wsfirm.com
`
`ATTORNEYS FOR PLAINTIFF
`PAPST LICENSING GMBH & CO. KG
`
`6
`
`Samsung Electronics Co., Ltd. et al.
`Ex 1015, p. 7
`
`

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`Case 6:15-cv-01095-RWS Document 541 Filed 07/27/17 Page 8 of 8 PageID #: 233476
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`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
`
`This is to certify that Exhibit 4 to this document should be filed under seal because it
`contains material designated as confidential under the Stipulated Protective Order approved and
`entered in this case on July 27, 2016 (Dkt. 107).
`
`/s/ Christopher V. Goodpastor
`Christopher V. Goodpastor
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on the 27th day of July 2017, all counsel of record who are deemed
`to have consented to electronic service are being served with a copy of this document via the
`Court’s CM/ECF system per Local Rule CV-5(a)(3) and are being served with a copy of Exhibit
`4 to this document via electronic mail.
`
`/s/ Christopher V. Goodpastor
`Christopher V. Goodpastor
`
`7
`
`Samsung Electronics Co., Ltd. et al.
`Ex 1015, p. 8
`
`