Case 2:17-cv-00140-WCB-RSP Document 297 Filed 01/25/19 Page 1 of 17 PageID #: 13155
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CYWEE GROUP LTD.,
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`CASE NO. 2:17-cv-00140-WCB-RSP
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`Plaintiff,
`
`v.
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`JURY TRIAL DEMANDED
`
`SAMSUNG ELECTRONICS CO., LTD. AND
`SAMSUNG ELECTRONICS AMERICA, INC.,
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`Defendants.
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`PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STAY PENDING
`INTER PARTES REVIEW PROCEEDINGS
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`Michael W. Shore
`Texas State Bar No. 18294915
`mshore@shorechan.com
`Alfonso Garcia Chan
`Texas State Bar No. 24012408
`achan@shorechan.com
`Christopher L. Evans
`Texas State Bar No. 24058901
`cevans@shorechan.com
`Ari B. Rafilson
`Texas State Bar No. 24060456
`arafilson@shorechan.com
`William D. Ellerman
`Texas State Bar No. 24007151
`wellerman@shorechan.com
`Paul T. Beeler
`Texas State Bar No. 24095432
`pbeeler@shorechan.com
`SHORE CHAN DEPUMPO LLP
`901 Main Street, Suite 3300
`Dallas, Texas 75202
`Tel: (214) 593-9110
`Fax: (214) 593-9111
`
`Attorneys for Plaintiff CyWee Group Ltd
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`GOOGLE 1015
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`Case 2:17-cv-00140-WCB-RSP Document 297 Filed 01/25/19 Page 2 of 17 PageID #: 13156
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`I. INTRODUCTION
`Staying this case will not simplify the dispute between CyWee and Samsung1 for several
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`reasons:
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`First, the claims at issue in the Google IPRs and the present suit are not co-extensive. This suit
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`includes claims that will not be addressed in the Google IPRs.
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`Second, although Samsung originally identified the key reference at issue in the Google IPRs
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`(U.S. Patent No. 7,089,148, “Bachmann”) in this case, it later dropped the reference entirely from
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`its invalidity contentions, and it did so after the Google IPRs were filed. And Samsung has never
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`relied on either of the other two Google IPR references in this lawsuit. Thus, the IPRs will have no
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`impact whatsoever on the invalidity defenses Samsung plans to raise at trial.
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`Third, the Google IPRs have not even been finally instituted.2
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`Fourth, the timing of Samsung’s motion is grossly unfair and yet another example of Samsung’s
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`gamesmanship. Samsung did not ask for a stay as soon as the Google IPRs were initially instituted,
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`nor did it seek a stay during any reasonable period of time thereafter. Rather, Samsung litigated this
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`case for seven months after the IPRs were filed, and it continued to aggressively litigate for over a
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`month after the institution decision, rushing to take six depositions of CyWee’s experts prior to the
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`close of expert discovery, and actively engaging in motion practice before the Court. It was not until
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`the Court set this case for trial that Samsung suddenly asked to grind the case to a halt to avoid
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`dispositive motions from CyWee that Samsung knew were coming. Samsung’s requested relief is
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`obviously not driven by concerns about judicial economy or a desire to conserve resources—it is
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`1 “Samsung” refers collectively to Defendants Samsung Electronics Co., Ltd. and Samsung
`Electronics America, Inc.
`2 CyWee has filed Requests for Rehearing on the Decision to Institute. The PTAB has not issued
`any rulings on these requests.
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`INTER PARTES REVIEW PROCEEDINGS
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`instead motivated by Samsung’s realization that trial is now imminent, and by its fear of the
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`inevitable result a trial will bring.
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`The Court should refuse to stay this case.
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`A. The Background and Status of the Lawsuit.
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`II. BACKGROUND
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`CyWee is not, as Samsung suggests, a non-practicing entity that stands to suffer no prejudice if
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`the trial of this case is delayed. Quite the contrary, CyWee was formed by the named inventors as a
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`startup of the Industrial Technology Research Institute of Taiwan (“ITRI”) in cooperation with
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`Softbank China. CyWee is in the business of developing and providing cutting-edge motion sensing
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`technologies for handheld devices such as video game controllers and smartphones. CyWee co-
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`developed the JIL Phone, which was an early prototype gaming smartphone that incorporated
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`CyWee’s proprietary sensor fusion technologies, and predated similar technologies currently used
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`by Samsung and other manufacturers. CyWee licenses its Sensor Fusion Hub solution, which
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`practices the patents-in-suit3 and includes CyWee’s proprietary software for performing sensor
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`fusion. Thus, CyWee directly competes with companies such as Samsung that use either their own
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`infringing sensor fusion solutions or those offered by third-parties, such as Qualcomm.4
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`CyWee filed this lawsuit on February 17, 2017, accusing Samsung of infringing certain claims
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`of the patents-in-suit, including claims 10 and 12 of the ’978 patent and claims 14-17 and 19 of
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`the’438 patent.5 Since that time, the parties have completed fact discovery, the Court has issued its
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`3 The patents-in-suit are U.S. Patent Nos. 8,441,438 (the “’438 patent”) and 8,552,978 (the “’978
`patent”).
`4 See, e.g., https://www.prnewswire.com/news-releases/cyweemotions-sensor-fusion-hub-software-
`now-available-on-cadence-tensilica-fusion-dsp-300192855.html
`5 Prior to filing this lawsuit, CyWee sued Apple in the Northern District of California for
`infringement of the same claims of the patents-in-suit. CyWee Group Ltd. v. Apple Inc., Case. No.
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`Case 2:17-cv-00140-WCB-RSP Document 297 Filed 01/25/19 Page 4 of 17 PageID #: 13158
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`Markman Order6 (and has heard and denied various requests by Samsung to reconsider that Order,
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`one of which was based on the pending Google IPRs7), Samsung has already filed (and lost) one
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`motion for summary judgment8, and the parties have substantially completed expert discovery.9 The
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`following is only some examples of the amount of activity that has taken place in this case: The
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`parties have exchanged a total of 205,701 pages of documents in discovery; the parties have taken
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`twenty-two depositions in this case at locations in the U.S. and abroad; the parties have filed a
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`combined total of ninety-three contested motions, responses, replies, and sur-replies;10 the Court has
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`conducted at least five hearings in this case including the Markman hearing and a number of
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`contested discovery hearings; and CyWee has been met with an extraordinary amount of resistance
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`from Samsung and third-parties throughout discovery, which has caused undue burden to CyWee
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`and resulted in the need to seek Court intervention on an excessive number of issues.11
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`Despite the foregoing litany of activity spanning almost two years, Samsung contends that
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`“[s]ignificant case milestones lie ahead.”12 Yet it can point to no such milestones save for the
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`obvious ones—dispositive motions, pre-trial matters, and trial. The parties have invested a
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`3:14-01853 HSG (N.D. Cal). Like Samsung, Apple never attempted to file IPRs as to any asserted
`claims. That case eventually settled.
`6 Dkt. 117.
`7 Dkt. 153; Dkt. 242.
`8 Dkt. 249.
`9 Samsung has taken depositions of six of CyWee’s experts in the last month after the Google IPRs
`were originally instituted. See Declaration of William Ellerman (“Ellerman Decl.”) ¶ 2; see also Ex.
`1. CyWee’s damages expert, Walter Bratic, was unavailable for deposition prior to the deadline due
`to having numerous other depositions, a trial, and an arbitration on his schedule. See Ex. 2. The
`parties have thus agreed that Mr. Bratic’s deposition will occur on February 20, 2018. Id.; Ellerman
`Decl. ¶ 2. CyWee has informed Samsung that one of the three listed authors of its conjoint survey
`report, Dr. Arvind Raghu, is unable to appear for a deposition due to conflicts that have arisen with
`his current employer. Ellerman Decl. ¶ 2. Dr. Raghu does not need to be deposed in this case
`because CyWee has agreed it will not call him to testify at trial if he is not deposed. Id.
`10 Id. ¶ 3.
`11 See Dkt. 49; Dkt. 93; Dkt. 110; Dkt. 126; Dkt. 130; Dkt. 137; Dkt. 157; Dkt. 164; Dkt. 168; Dkt.
`176; Dkt. 251; Dkt. 270.
`12 Dkt. 291 at 2.
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`monumental amount of time, expense, and effort in moving this case through fact and expert
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`discovery. The case is now at the precipice of dispositive motions (that CyWee expects to win) and,
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`for all intents and purposes, on the eve of trial.
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`B. Related Cases and the IPRs.
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`After the case against Apple settled, and after this lawsuit was filed, CyWee filed suits against
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`six other parties in various jurisdictions, asserting the same claims of the patents-in-suit: Huawei
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`(Case No. 2:17-cv-00495, E.D. Tex), HTC (Case No. 17-cv-00932, W.D. Wa), LG (Case No. 3-17-
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`cv-01102, S.D. Cal.); Motorola (Case No. 1-17-cv-00780, D. Del); ZTE (Case No. 3-17-cv-02130,
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`S.D. Cal); and Google (Case No. 1:18-cv-00571, D. Del). None of those cases have progressed
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`nearly as far as the instant case. Markman orders have been entered in only two of the cases
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`(Huawei and Motorola).13 Discovery has not been completed in any of those cases—no party or fact
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`witness depositions have been taken, no expert reports have been served and, except for a deposition
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`related solely to claim construction (Huawei), no expert depositions have been taken.14 All of those
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`cases are significantly behind the present case in terms of readiness for trial.15
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`On June 14, 2018, Google filed two IPR petitions as to Claims 1 and 3-5 of the ’438 patent16
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`and Claims 10 and 12 of the ’978 patent.17 The IPRs do not challenge Claims 14-17 and 19 of the
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`’438 patent, which are asserted by CyWee against Samsung in this case. The IPRs rely wholly on
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`Bachmann in combination with either U.S. Patent Publication 2004/00953317 (“Zhang”) or U.S.
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`Patent 7,158,118 (“Liberty”). On December 11, 2018, the PTAB instituted the two IPRs. On
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`13 CyWee Group Ltd. v. Mobility LLC, Case No. 2:17-cv-00495 (E.D. Tex), Dkt. 55; CyWee Group
`Ltd. v. Huawei Device Co. Ltd. et al, Case No. 1-17-cv-00780 (D. Del), Dkt. 113.
`14 Ellerman Decl. ¶ 4.
`15 See, e.g., Exs. 2 & 3.
`16 IPR2018-01258.
`17 IPR2018-01257.
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`December 26, 2018, CyWee filed Requests for Rehearing on the institution decisions, arguing
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`among many other things that during claim construction, district courts (including this Court) have
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`construed or characterized the patents-in-suit in a manner that makes clear that Bachmann is not and
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`cannot be invalidating prior art—a premise with which Samsung has agreed in this case.18 The
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`PTAB has yet to rule on CyWee’s Requests for Rehearing.
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`After the Google IPRs were instituted, defendants in several of the co-pending cases approached
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`CyWee about agreeing to stay those cases pending the outcome of the IPRs. Because none of those
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`cases have advanced through discovery, and because of a number of them have not even completed
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`claim construction, CyWee agreed that staying those cases was appropriate so it could focus its
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`resources on the cases against Samsung and HTC.19 In addition, all of the defendants in the other
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`cases currently rely on Bachmann and have not withdrawn that reference like Samsung did.20
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`C. Samsung Ignores the IPRs and Continues to Litigate.
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`For seven months after the Google IPRs were filed, Samsung aggressively litigated this case.
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`And once the Google IPRs were instituted, unlike the other defendants in the co-pending cases,
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`Samsung did not immediately request a stay, nor did it seek a stay within any reasonable amount of
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`time thereafter. Quite the opposite, after Samsung disclosed its rebuttal expert witnesses on
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`18 Exs. 9 & 10; see also Ex. 12. As this Court held, after reviewing Samsung’s motion to reconsider
`the Court’s Markman order, “[a] device practicing the patents may indicate movement in a variety
`of ways, including displaying ‘some video effect on the display screen’ to ‘exhibit a movement
`pattern on the display screen.’” Dkt. 153 at 2. Bachmann in no way addresses the issue of
`translating a device’s detected motions to control a display. As mentioned, Samsung dropped
`Bachmann from its invalidity contentions after the Google IPRs were filed. Compare Ex. 11, with
`Ex. 12. And it has never raised Zhang or Liberty in this case. See Exs. 11 & 12.
`19 CyWee agreed to stay its lawsuits against Google, Huawei, ZTE, Motorola, and LG. CyWee’s
`case against HTC has not been stayed, and will not be stayed, because among other things, that case
`involves significant claims (including equitable and injunctive claims) that are not governed by the
`patent laws.
`20 Ellerman Decl. ¶ 5; see also Exs. 5, 6, 7 & 8.
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`December 3, 2018, Samsung immediately demanded depositions of all of CyWee’s experts to occur
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`prior to the January 10, 2019 deadline for expert discovery, which required CyWee to mobilize its
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`experts in spite of busy holiday schedules and to prepare and produce the experts for depositions in
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`various locations in the U.S. and abroad.21 Specifically, after the Google IPRs were instituted,
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`Samsung took the following depositions: D. Richard Brown, III (in Dallas, Texas); Joseph LaViola
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`(in Orlando, Florida); Thomas Richardson (in London, England); Scott Steinberg (in Las Vegas,
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`Nevada); Mihajlo Popesku (in London, England); and Gary Blank (in Dallas, Texas).22
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`In order to ensure that expert discovery was substantially completed within the short timeframe
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`allowed, to avoid further delays in this case, and to ease the burden on the parties, CyWee elected to
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`forego taking depositions of any of Samsung’s designated experts. Had CyWee not so agreed, given
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`the number of expert witnesses in this case, it would have been virtually impossible for the parties to
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`accomplish expert discovery between December 3, 2018 and January 10, 2019. CyWee has gone to
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`extraordinary lengths to ensure that expert discovery, and thus the remainder of this case,
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`experienced no further delays.23
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`In addition to conducting expert discovery, Samsung has engaged in significant motion practice
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`following institution of the Google IPRs. Specifically, on January 3, 2019, Samsung filed a motion
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`to strike CyWee’s allegation of induced infringement.24 Since the Google IPRs were instituted,
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`Samsung has also briefed its opposition to CyWee’s motion to de-designate confidential
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`21See Ex. 1.
`22 These depositions cost CyWee approximately $300,000 in expert witness fees alone. That work
`would likely have to be completely redone to refresh the witnesses’ recollections if the case were
`delayed a year or more. The CyWee experts are primed and ready for trial.
`23 All expert discovery is now complete, with the exception of Mr. Bratic’s deposition (discussed
`previously), which the parties have agreed to take on February 20, 2019. Ellerman Decl. ¶ 2; see
`also Ex. 2.
`24 Dkts. 277, 294.
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`documents25, and it has opposed CyWee’s motion for leave to supplement its expert reports and
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`infringement contentions to address matters raised for the first time in one of Samsung’s rebuttal
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`expert reports.26 At no time during any of this activity did Samsung ever raise the prospect of a stay.
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`D. The Case is Set for Trial.
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`On January 9, 2019, the Court issued its Fourth Amended Docket Control Order (“DCO”)
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`setting this case for trial beginning on May 13, 2019.27 Per the DCO, the only significant deadlines
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`remaining in this case are dispositive motions, pretrial filings and disclosures, the pretrial hearing,
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`and trial. CyWee has been preparing dispositive motions for several weeks and expects to file them
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`(and win them) in the next few weeks.
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`On January 15, 2019, less than a week after entry of the DCO, Samsung’s counsel wrote to
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`CyWee, claiming that “an immediate stay of this case is warranted,” in order to avoid “pre-trial
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`matters, preparing for trial, and conducting trial itself.”28 CyWee responded, indicating its surprise
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`at Samsung’s request for a stay given the late stage of the lawsuit, the fact that Samsung had
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`actively and aggressively litigated for weeks after the institution decisions, and the fact that
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`Samsung had previously touted its confidence that it would succeed at the dispositive motions stage
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`of the case.29 Samsung filed its motion to stay on January 18, 2019, which was over seven months
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`after the Google IPRs were filed and five weeks after the institution decisions.
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`E. The China Lawsuits.
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`This case is not the only dispute between CyWee and Samsung. On January 11, 2018, CyWee
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`filed lawsuits in the Shanghai, China IP Court for infringement of two Chinese patents claiming
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`25 Dkt. 271.
`26 Dkt. 286.
`27 Dkt. 280.
`28 Ex. 14.
`29 Id.
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`priority to the patents-in-suit based on sales of accused Samsung Galaxy phones in that country.30 In
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`the Chinese court, CyWee seeks injunctive relief prohibiting all sales of the accused products. Upon
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`information and belief, several more suits are being filed in China over the next few weeks.
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`III. ARGUMENTS & AUTHORITIES
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`There is “no per se rule” that patent cases should be stayed pending IPR proceedings, and the
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`decision “must be based upon the circumstances of the individual case before the court.”31 In
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`considering whether a stay is justified, this Court has analyzed the following three factors, which it
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`articulated in the NFC v. HTC32 case: (1) whether a stay will cause the nonmoving party to suffer
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`undue prejudice; (2) whether the case has reached an “advanced stage” of litigation; and (3) whether
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`a stay will simplify the case.33 Here, Samsung’s request fails every test: (1) CyWee stands to incur
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`significant prejudice, and Samsung’s obviously dilatory motives should not be rewarded by giving it
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`a tactical advantage via a stay after completion of expert discovery and on the eve of CyWee
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`winning dispositive motions; (2) this case is in the advanced stages, and virtually on the eve of trial;
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`and (3) given that Samsung relies on none of the prior art at issue in the Google IPRs in this case,
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`the Google IPRs will have no preclusive effect on the multiple claims CyWee is asserting against
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`Samsung in this case that are not part of the Google IPRs, nor will they simplify the parties’ dispute,
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`particularly given that the dispute has now expanded beyond this District and into China. Thus,
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`staying this case will only complicate and prolong a potential global resolution. Balancing each of
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`the above factors weighs heavily against staying this case.
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`30 Declaration of Erick Robinson ¶ 2.
`31 Realtime Data LLC v. Actian Corp., No. 6:15-CV-463-RWS-JDL, 2016 WL 9340768 at *2 (E.D.
`Tex. Nov. 29, 2016).
`32 NFC Tech. LLC v. HTC Am., Inc., No. 2:13-CV-1058-WCB, 2015 WL 1069111 (E.D. Tex. Mar.
`11, 2015).
`33 Id. at *2.
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`A. A Stay would Unduly Prejudice CyWee.
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`As this Court has acknowledged, “any delay in the vindication of patent rights is prejudicial to a
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`patent owner.”34 But CyWee is not merely a “patent owner,” and Samsung’s assertion that “CyWee
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`makes no products and does not compete with Samsung” is false.35 CyWee was founded out of
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`ITRI by the named inventors of the patents-in-suit, and it is a leading sensor fusion technology
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`company that licenses its Sensor Fusion Hub solution (which practices the patents-in-suit and
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`includes CyWee’s proprietary sensor fusion software) to customers and partners around the world.36
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`Thus, CyWee competes with Samsung and third-parties such as Qualcomm, which have developed
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`their own sensor fusion algorithms that are used to infringe CyWee’s patents when incorporated into
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`Samsung’s accused products. Unlike the plaintiff in NFC, which did not dispute the defendant’s
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`contention that the parties were not competitors, CyWee stands to suffer losses to its business that
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`cannot be measured in terms of monetary compensation if Samsung is allowed to continue its
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`unfettered infringement while the Google IPRs are pending.37 CyWee even made settlement offers
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`to Samsung that included Samsung buying CyWee’s sensor fusion software, so Samsung knows its
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`implication that CyWee is a non-competitor, non-practicing entity are false.
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`Perhaps more importantly, Samsung cannot credibly discount the prejudice CyWee will suffer,
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`in light of Samsung’s transparently dilatory motives in seeking a stay at this juncture. In NFC, this
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`Court held that an important consideration that bears on whether a stay should be entered is
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`“whether the defendant acted with reasonable dispatch . . . in filing its motion for a stay.”38 Indeed,
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`34 Id. at *2 (citations omitted).
`35 Dkt. 291 at 6.
`36 See https://www.prnewswire.com/news-releases/cyweemotions-sensor-fusion-hub-software-now-
`available-on-cadence-tensilica-fusion-dsp-300192855.html
`37 See Realtime, 2016 WL 9340768 at *3 (stating that merely pursuing monetary damages does not
`preclude a plaintiff “from experiencing prejudice” if the Court grants a motion to stay.).
`38 NFC Tech., 2015 WL 1069111 at *3.
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`in deciding whether there is undue prejudice to a plaintiff, courts often look for evidence of
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`“dilatory motives or tactics” by the defendant seeking a stay.39 Here, Samsung alleges that it “has
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`been diligent in seeking this stay,” and that it “acted quickly to join the IPRs and move for a stay.”40
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`But those allegations are inconsistent with the indisputable record—Samsung made no effort to stay
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`this case for over seven months after the Google IPRs were filed and it waited five weeks after the
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`initial institution decisions.41 And during that five-week period, Samsung persisted in aggressively
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`litigating this case, electing among other things to push forward with expert discovery on an
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`expedited basis at the cost of substantial time and expense to CyWee. It was only after the Court
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`issued the DCO setting this case for trial that Samsung decided that it wanted to put the case on
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`hold. Obviously, Samsung had no problem with the continued progression of the case—that is, until
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`that progression reached its natural conclusion of a trial, and Samsung found itself facing the
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`prospect of dispositive motions. Unlike the defendant in NFC, who acted “very promptly” in
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`seeking a stay, Samsung did not act promptly at all.42
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`CyWee also stands to suffer prejudice because a stay will give Samsung an unfair “tactical
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`advantage” in this lawsuit.43 Having proceeded through expert discovery despite the institution
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`39 e.Digital Corp. v. Arcsoft, Inc., No. 15-CV-56-BEN (DHB), 2016 WL 452152, at *2 (S.D. Cal.
`Feb. 3, 2016); Realtime, 2016 WL 9340768 at *2 (“Defendants did not act with sufficient
`dispatch.”).
`40 Dkt. 291 at 9.
`41 Realtime, 2016 WL 9340768 at *3 (“Staying this litigation in order to wait for an IPR decision
`that is not due until months after trial has already taken place would prejudice Plaintiff”) (emphasis
`added).
`42 NFC Tech., 2015 WL 1069111 at *3; see also Realtime, 2016 WL 9340768 at *2 (“Defendants’
`delay in filing its IPR petitions in combination with Plaintiff’s interest in timely enforcement of its
`patent rights weigh against staying the case.”).
`43 See VirtualAgility Inc. v. Salesforce.com, Inc. 759 F.3d 1307, 1319-20 (Fed. Cir. 2014)
`(recognizing that giving a “tactical advantage” to a defendant is a factor considered in the prejudice
`analysis); see also NFC Tech, 2015 WL 1069111 at *3 (analyzing plaintiff’s allegations that
`defendants would be tactically advantaged by a stay).
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`decision, Samsung is now in a position where, if the case is stayed, it will have the luxury of many
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`months to examine and dissect CyWee’s expert reports and depositions in order to prepare
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`dispositive motions and Daubert motions that would otherwise be due on February 6, 2019. CyWee
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`anticipates filing its own motion for summary judgment by the current deadline, and it is fully
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`prepared to do so. The Court should not allow Samsung to escape this looming deadline, and it
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`certainly should not condone Samsung’s tactic of hurrying through expert discovery only to then try
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`to grind the case to a halt immediately before dispositive motions and Daubert motions are due.44
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`B. This Case is Effectively on the Eve of Trial.
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`That the second factor (the state of the proceedings) weighs against a stay is beyond dispute. In
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`the NFC case, claim construction briefing was completed but no claim construction order had
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`issued, there was an entire month of fact discovery remaining, the parties had not disclosed expert
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`witnesses, and no expert discovery had occurred.45 Nevertheless, the Court found that the state of
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`the proceedings in that case “cuts slightly against the issuance of a stay.”46 Here, by contrast, the
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`Court issued its claim construction order over six months ago,47 Samsung has unsuccessfully sought
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`reconsideration of that order twice,48 fact discovery ended over five months ago,49 the deadline for
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`expert disclosures has passed,50 and the parties have substantially completed expert discovery. All
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`that remains are dispositive motions (Samsung already filed one such motion, which was denied),
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`44 Samsung also makes the confusing argument that CyWee will not suffer prejudice because it has
`agreed to stay a number of its co-pending lawsuits against other defendants. CyWee’s decision to
`agree to stay those cases has no bearing on how it will be prejudiced if this case is stayed. As
`mentioned, none of those cases were remotely close to the stage of this case, and all of the
`defendants in those cases have asserted Bachmann, Zhang, and/or Liberty as prior art.
`45 NFC Tech, 2015 WL 1069111 at *3.
`46 Id. at *4.
`47 Dkt. 117.
`48 Dkt. 153; Dkt. 242.
`49 Dkt. 123.
`50 Dkt. 244.
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`PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STAY PENDING
`INTER PARTES REVIEW PROCEEDINGS
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`pretrial matters, and trial itself. This case is, therefore, directly analogous to the Court’s opinion in
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`Realtime v. Actian, which specifically distinguished NFC, and held that a stay was inappropriate
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`when it was sought six weeks after the close of fact discovery, after depositions of 17 witnesses, and
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`four months after the Court’s claim construction order.51 This case, even more so than the one in
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`Realtime, is effectively ripe for trial, and under these circumstances, a stay is inappropriate.52
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`C. A Stay will not Simplify this Case.
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`The final factor weighs most heavily against staying this case. As an initial matter, CyWee has
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`filed Requests for Rehearing of the Google IPR institution decisions, and the PTAB has yet to rule
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`on those requests.53 So, it is speculative to conclude that the IPRs will move forward at all, much
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`less to assume they will serve to simplify any issues presented in this lawsuit. Moreover, as
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`Samsung acknowledges, the IPRs do not challenge Claims 14-17 and 19 of the ’438 patent, which
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`CyWee asserts in this case. Those claims will be unaffected by the outcome of the IPRs, and staying
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`this case would unreasonably postpone the trial while not eliminating the ultimate need for it.54
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`Samsung’s primary argument for simplification is its speculation, based solely on statistics, that
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`some or all of the asserted claims will be canceled in the Google IPRs. But generic statistics can
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`51 Realtime, 2016 WL 9340768 at *4. The Court in that case also rejected the Defendants’ argument
`that “the most significant expenses in litigation” are “dispositive motion briefing and argument,
`pretrial preparation, and trial preparation,” which are the same exact arguments made by Samsung
`here. Id. at 5.
`52 It is worth noting that if the government shutdown continues, the PTAB will run out of funding
`and is expected to “cut back to essential personnel,” which may result in further delays.
`http://www.ipwatchdog.com/2019/01/24/without-government-shutdown-solution-pto-patent-
`operations-funded-mid-february/id=105615/
`53 See Exs. 9 & 10.
`54 Unifi Sci. Batteries, LLC v. Sony Mobile Commc’ns AB, No. 6:12CV221 LED-JDL, 2014 WL
`4494479, at *2 (E.D. Tex. Jan. 14, 2014) (holding that a stay pending IPR final decision would not
`fulfill the court’s obligation to “secure the just, speedy, and inexpensive determination of every
`action.”). This case also held that the litigation was too far along to justify a stay, even though claim
`construction was not yet completed. Id. at *3.
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`INTER PARTES REVIEW PROCEEDINGS
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`hardly serve as a measure of the merit (or lack thereof) of the particular IPRs at issue. Samsung’s
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`actions and tacit admissions, on the other hand, speak volumes. Despite being well aware of the
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`prior art combinations that the Google IPRs are based on, Samsung never filed any IPRs of its own,
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`and it abandoned the key prior art raised in the Google IPRs after those IPRs were filed.55
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`Even more telling, the Google IPRs rely wholly on Bachmann in combination with either Zhang
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`or Liberty.56 But Samsung has never cited or relied on or cited Zhang or Liberty in its invalidity
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`contentions. And while Samsung cited Bachmann in its initial invalidity contentions,57 after the
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`Court issued its ruling requiring Samsung to narrow its invalidity contentions, and after the Google
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`IPRs were filed, Samsung completely eliminated that reference from its amended contentions, and
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`did not cite any of the three Google IPR references in its expert reports.58 Thus, Samsung has not
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`only implicitly conceded that the Google IPRs are meritless, it has precluded itself from claiming
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`that any of the prior art at issue in the Google IPRs is invalidating art in this case, and it actually did
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`so after the Google IPRs were filed.59
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`Because Samsung withdrew its reliance on Bachmann and has never relied on the other Google
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`IPR references, its remaining arguments for simplification of the issues fall flat. Specifically,
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`Samsung argues that depending on how the PTAB rules, “estoppel principles will apply and may
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`narrow the invalidity defenses for presentation at trial.”60 But Samsung is already estopped from
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`55 T