Case 2:12-cv-02825-JPM-tmp Document 59 Filed 08/13/13 Page 1 of 6 PageID 718
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`Civil Action No. 12-cv-02824-JPM-tmp
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`JURY TRIAL DEMANDED
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`SAMSUNG TELECOMMUNICATIONS
`AMERICA, LLC,
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`SAMSUNG ELECTRONICS AMERICA
`INC.,
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`Civil Action No. 12-cv-02825-JPM-tmp
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`JURY TRIAL DEMANDED
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`Defendant.
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`SAMSUNG’S MOTION FOR LEAVE TO FILE REPLY IN SUPPORT OF SAMSUNG’S
`MOTION TO COMPEL SUPPLEMENTAL INFRINGEMENT CONTENTIONS
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`Pursuant to Local Rule 7.2(c), defendants Samsung Telecommunications America, LLC
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`(“STA”) and Samsung Electronics America, Inc. (“SEA”) (collectively, “Samsung”) respectfully
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`move for the entry of an Order granting leave to file a reply, not exceeding 10 pages in length, in
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`support of Samsung’s pending motion to compel supplemental infringement contentions that
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`comply with LPR 3.1, and relieve defendants of certain responsive discovery obligations pending
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`service of compliant contentions. In support, Samsung respectfully submits the following:
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`Case 2:12-cv-02825-JPM-tmp Document 59 Filed 08/13/13 Page 2 of 6 PageID 719
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`1.
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`These actions were commenced on September 21, 2012 (STA D.E. 1; SEA D.E.
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`1).1 Samsung timely responded to the complaint on December 31, 2012 (STA D.E. 22; SEA
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`D.E. 26). On January 7, 2013, Plaintiff B.E. Technology, L.L.C. (“Plaintiff”) served more than
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`10,000 pages of Infringement Contentions (“ICs”) on both SEA and STA. On July 23, 2013,
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`after this Court lifted the stay in these actions, Samsung filed a motion and supporting documents
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`seeking to compel Plaintiff to serve supplemental infringement contentions so that Samsung
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`could meet its obligations under LPR 3.3 and 3.4 (STA D.E. 46; SEA D.E. 50). Plaintiff filed a
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`response opposing Samsung’s motion on August 9, 2013 (STA D.E. 53; SEA D.E. 57).
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`2.
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`At the July 26, 2013 initial case management conference, the Court referenced its
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`Order in Multilayer Stretch Cling Film Holdings, Inc. v. MSC Mktg. & Tech., Inc., No. 2:12-cv-
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`2112-JPM-tmp (W.D. Tenn. July 23, 2013), denying a defendant’s motion to compel
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`supplemental infringement contentions. The Court’s Order in Multilayer was issued the same
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`day as, and became publicly available after, Samsung filed its motion to compel, and thus was
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`not available to Samsung at the time it filed its motion, but was available to and cited by Plaintiff
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`in its opposition (STA D.E. 53 at 3-4; SEA D.E. 57 at 3-4). In its reply, Samsung would seek to
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`(a) demonstrate that Plaintiff’s ICs fail to meet the standards set forth in Multilayer, and (b)
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`distinguish Multilayer from the present facts.
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`3.
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`To Samsung’s knowledge, resolution of the present motion would be only the
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`second opportunity (after Multilayer) that this Court has had to address a plaintiff’s obligations
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`under Local Patent Rule 3.1. The Court’s resolution of Samsung’s motion will not only resolve
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`the present dispute, but may serve as an important guidepost for future patent litigations in this
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`District.
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`1 All citations to “STA D.E.” refer to the docket entries in B.E. v. STA, Case No. 2:12-cv-2824.
`All citations to “SEA D.E.” refer to the docket entries in B.E. v. SEA, Case No. 2:12-cv-2825.
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`Case 2:12-cv-02825-JPM-tmp Document 59 Filed 08/13/13 Page 3 of 6 PageID 720
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`4.
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`As the moving party, Samsung bears the burden on the underlying motion.
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`Allowing Samsung an opportunity for rebuttal, through a reply, comports with fair application of
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`that burden.
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`5.
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`Plaintiff’s opposition to Samsung’s motion includes arguments that were not
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`predictable as certain or requiring pre-emptive or hypothetical argument in Samsung’s opening
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`motion papers, and contains factual assertions which were not previously ascertainable by
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`Samsung, to which Samsung should be given an opportunity to respond. For example, Plaintiff,
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`for the first time, provides an explanation of the purported connection in its infringement
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`contentions between screenshots and certain limitations of the claims of the ‘290 Patent with
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`respect to a different product than the one addressed by Samsung in its original motion. In its
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`reply, Samsung would seek to demonstrate (1) why Plaintiff’s attempt to effectively supplement
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`its contentions by way of its new explanation confirms, rather than contradicts, its failure to
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`comply with LPR 3.1; and (2) why, even if its new explanations could be treated as a
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`supplement, Plaintiff’s infringement contentions are still deficient and fail to provide enough
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`information to enable Samsung to provide responsive noninfringement contentions or document
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`production under LPR 3.3 and 3.4. The Court would benefit from hearing Samsung’s full
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`argument on these issues.
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`6.
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`Plaintiff’s opposition includes its own cross-motion for relief, requesting that the
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`Court order Samsung to agree to a “representative products stipulation” (STA D.E. 53 at 18-19;
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`SEA D.E. 57 at 18-19). Samsung respectfully requests the opportunity to respond to Plaintiff’s
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`cross-motion, and thereby demonstrate to the Court that it cannot agree to a representative
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`products stipulation without first knowing what functionality Plaintiff accuses of infringement
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`-3-
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`Case 2:12-cv-02825-JPM-tmp Document 59 Filed 08/13/13 Page 4 of 6 PageID 721
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`and the basis for such accusation. Plaintiff’s deficient infringement contentions thus preclude the
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`relief it seeks by way of its cross-motion.
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`7.
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`These actions are at an early stage. The Scheduling Orders for these actions have
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`only recently been entered on July 30, 2013 (STA D.E. 52; SEA D.E. 56). The issues to be
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`decided on this motion – the sufficiency of Plaintiff’s infringement contentions and the
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`timeframe for Samsung to provide its response – would not materially affect other deadlines set
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`forth in these Scheduling Orders, including deadlines for invalidity contentions, validity
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`contentions, or claim construction related disclosures and briefing. The proposed Order on this
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`motion would require defendants to file their reply memorandum within just 5 days from the
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`grant of leave. Allowing these few additional days before the motion is fully briefed will not
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`materially impede the progress of these actions.
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`8.
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`Briefing must address a number of issues and circumstances. While Samsung is
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`committed to its reply being as concise as possible, coverage of the issues meriting a reply
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`appears likely to require more than the 5 pages normally permitted by Local Rule 7.2(e). This
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`motion respectfully requests authorization to use up to 10 pages for such purpose.
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`DATE: August 13, 2013
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`Respectfully submitted,
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`/s/ Jonathan E. Nelson
`Shepherd D. Tate (TN BPR #05638)
`Jonathan E. Nelson (TN BPR #028029)
`BASS, BERRY & SIMS, PLC
`100 Peabody Place, Suite 900
`Memphis, Tennessee 38103
`Telephone: (901) 543-5900
`Facsimile:
`(901) 543-5999
`state@bassberry.com
`Email:
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`jenelson@bassberry.com
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`Richard C. Pettus (admitted pro hac vice)
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`Case 2:12-cv-02825-JPM-tmp Document 59 Filed 08/13/13 Page 5 of 6 PageID 722
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`Joshua Raskin (admitted pro hac vice)
`Justin A. MacLean (admitted pro hac vice)
`GREENBERG TRAURIG, LLP
`200 Park Avenue
`New York, NY 10166
`Telephone:
`(212) 801-9200
`Facsimile:
`(212) 801-6400
`Email:
`pettusr@gtlaw.com
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`raskinj@gtlaw.com
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`macleanj@gtlaw.com
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`Attorneys for Defendants, Samsung Electronics
`America, Inc. and Samsung Telecommunications
`America, LLC
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`-5-
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`Case 2:12-cv-02825-JPM-tmp Document 59 Filed 08/13/13 Page 6 of 6 PageID 723
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`CERTIFICATE OF CONSULTATION
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`I, Jonathan Nelson, attorney for Defendants Samsung Electronics America, Inc. and
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`Samsung Telecommunications America, LLC, certify that I communicated telephonically with
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`Counsel for Plaintiff, Richard Carter, on August 13, 2013 regarding the relief requested in the
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`foregoing Motion. Mr. Carter advised that the Plaintiff did not consent to the relief requested in
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`this Motion.
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` /s/ Jonathan Nelson
`Jonathan Nelson
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`CERTIFICATE OF SERVICE
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`The foregoing document was filed under the Court’s CM/ECF system, automatically
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`effecting service on counsel of record for all other parties who have appeared in this action on
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`the date of such service.
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` /s/ Jonathan Nelson
`Jonathan Nelson
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`-6-