Case 2:17-cv-00140-WCB-RSP Document 179 Filed 10/03/18 Page 1 of 7 PageID #: 7730
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CYWEE GROUP LTD.,
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`Plaintiff
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`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`NO. 2:17-CV-00140-WCB-RSP
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`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S MOTION FOR PARTIAL RECONSIDERATION
`OF THE COURT’S CLAIM CONSTRUCTION ORDER
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`

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`Case 2:17-cv-00140-WCB-RSP Document 179 Filed 10/03/18 Page 2 of 7 PageID #: 7731
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`I.
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`INTRODUCTION
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`Throughout the claim construction process, Plaintiff CyWee Group Ltd. (“CyWee”)
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`stated merely that a 3D pointing device should be given its plain and ordinary meaning, which it
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`framed as “a handheld device that uses at least a rotation sensor comprising one or more
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`gyroscopes, and one or more accelerometers to determine deviation angles or the orientation of a
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`device.” CyWee criticized Samsung’s proposed construction, which required a cursor or pointer
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`on the display. Subsequently, the Court construed “3D pointing device” to have its plain and
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`ordinary meaning and stated that it would prohibit Samsung from arguing before the jury that a
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`3D pointing device requires a cursor or pointer on a display.
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`Reconsideration of that prohibition is warranted based on the official positions recently
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`taken on that very point by CyWee in its preliminary responses to Google LLC’s inter partes
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`review petitions. There, CyWee argued that a 3D pointing device must point to or control a
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`pointer (or similar graphic) on a screen, which is wholly inconsistent with the positions it has
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`advanced before the Court in this case. Defendants Samsung Electronics Co., Ltd., and Samsung
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`Electronics America, Inc. (collectively “Samsung”) therefore move for reconsideration of the
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`Court’s August 14, 2018 Order (Dkt. No. 153) with respect to its prohibition regarding the term
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`“three-dimensional (3D) pointing device”/”3D pointing device” recited in Claims 1, 3, 4, 5, 14,
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`15, 16, 17, and 19 of the ’438 Patent and Claim 10 of the ’978 Patent.
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`II.
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`BACKGROUND
`A.
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`CyWee’s Positions in the District Court Litigation
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`On February 23, 2018, CyWee filed its Opening Claim Construction Brief in this case,
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`arguing that the term “three-dimensional (3D) pointing device”/“3D pointing device” should
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`either be construed to have its plain and ordinary meaning or construed very broadly as “a
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`handheld device that uses at least a rotation sensor comprising one or more gyroscopes, and one
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`Case 2:17-cv-00140-WCB-RSP Document 179 Filed 10/03/18 Page 3 of 7 PageID #: 7732
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`or more accelerometers to determine deviation angles or the orientation of a device.” Dkt. No. 66
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`at 13–17. As set forth in its Responsive Claim Construction Brief, Samsung’s proposed
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`construction differed from CyWee’s in one key respect—Samsung’s proposed construction
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`required a 3D pointing device to perform a pointing function and “control the movement of a
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`cursor or pointer on a display.” Dkt. No. 67 at 17–22. CyWee replied that the asserted patents “in
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`no way suggest[] that a pointer or curser [sic] is required.” Dkt. No. 71 at 6–7.
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`On July 9, 2018, Magistrate Judge Payne concluded that Samsung’s proposed
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`construction was unnecessary and that the term “three-dimensional (3D) pointing device”/“3D
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`pointing device” required no special definition. Dkt. No. 117 at 8. On July 23, 2018, Samsung
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`objected to Magistrate Judge Payne’s Order, noting that he had not resolved the dispute between
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`the parties as to whether a 3D pointing device must point to something. Dkt. No. 125 at 3.
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`At the hearing on Samsung’s Objections, CyWee represented to the Court that there was
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`no requirement that a “3D pointing device” perform a pointing function and argued this would
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`read out embodiments where the display was integrated with the 3D pointing device. 8/10/18
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`Hr’g Tr. at 49–50. The Court subsequently held that a 3D pointing device should be construed to
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`have its plain and ordinary meaning, further adding that a 3D pointing device does not have to
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`control a cursor or pointer on a display. Dkt. No. 153 at 2–3.
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`B.
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`CyWee’s Subsequent Inconsistent Position Before the Patent Trial and
`Appeal Board
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`In June 2018, Google filed two inter partes review petitions challenging Claims 1 and 3–
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`5 of the ’438 Patent and Claims 10 and 12 of the ’978 Patent. On September 14, 2018, CyWee
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`filed its preliminary responses to both petitions. In discussing the proper construction of the term
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`“3D pointing device,” CyWee abruptly reversed the position advanced before the Court in this
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`-1-
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`Case 2:17-cv-00140-WCB-RSP Document 179 Filed 10/03/18 Page 4 of 7 PageID #: 7733
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`case. Pointing specifically to the example of a 3D pointing device shown in Figure 1 of the ’438
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`Patent, CyWee argued that:
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`In order to give the meaning to the term “pointing device” as used
`in the phrase, the device must be able to point to or control
`something on a display. Ex. 2001, ¶67. A PHOSITA would
`understand that a “pointing device” is used to “perform control
`actions and movements . . . for certain purposes including enter-
`tainment such as playing a video game, on the display device
`through the [] pointer on the screen.” Id.; Ex. 1001, 1:48-51.
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`Ex. 11 at 19 (PR to IPR No. 2018-01257); Ex. 2 at 20 (PR to IPR No. 2018-01258) (emphasis
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`added). CyWee’s expert provided an identical explanation. Ex. 3 (Expert Decl. to IPR No. 2018-
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`01257) ¶ 61; Ex. 4 (Expert Decl. to IPR No. 2018-01258) ¶ 67. CyWee further argued that “3D
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`pointing device” should be construed to mean “a device capable of sensing movement and
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`orientation in three dimensions to point to or control actions on a display.” Ex. 1 at 20; Ex. 2 at
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`21 (emphasis added).
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`III. LEGAL STANDARD
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`In proceedings before the PTAB, patent claims are afforded their broadest reasonable
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`interpretation. In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1279 (Fed. Cir. 2015). In a
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`district court proceeding, patent claims are construed to have their ordinary and customary
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`meaning to a person of ordinary skill in the art at the time of invention. Phillips v. AWH Corp.,
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`415 F.3d 1303, 1312–13 (Fed. Cir. 2005).
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`A claim construction order is not necessarily a final ruling as to the court’s construction
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`of the claims. Instead, in certain circumstances claim construction may be an “ongoing process
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`that leads to refinements in the court’s claim construction in the course of the case as the court
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`1 Unless otherwise stated, all exhibits referenced herein are attached to the Declaration of
`Elizabeth Brann, filed concurrently herewith.
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`-2-
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`Case 2:17-cv-00140-WCB-RSP Document 179 Filed 10/03/18 Page 5 of 7 PageID #: 7734
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`gains a better understanding of the claims.” Kroy IP Holdings v. Autozone, Inc., No. 2:13-cv-
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`888-WCB, 2015 U.S. Dist. LEXIS 15684, at *9 (E.D. Tex. Feb. 10, 2015).
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`IV. ARGUMENT
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`Reconsideration of the Court’s prohibition against Samsung arguing that a “3D pointing
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`device” requires a cursor or pointer on a display is justified because CyWee’s new arguments
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`before the PTAB directly contradict the positions it has taken in this case and advanced before
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`this Court. Specifically, CyWee argued throughout the claim construction proceedings in this
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`case that the plain and ordinary meaning of “3D pointing device” did not require control of a
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`cursor or pointer and succeeded in obtaining a plain and ordinary meaning construction from the
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`Court. Dkt. No. 66 at 15–17; Dkt. No. 71 at 5–7; 8/10/18 Hr’g Tr. at 52:1–21. The Court also
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`stated it would prohibit Samsung from making this argument to the jury. Dkt. No. 153 at 2–3.
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`Now, however, CyWee argues before the PTAB that the 3D pointing device must be able
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`to point to or control a pointer (or similar graphic) on a display. Ex. 1 at 19; Ex. 2 at 20. Two of
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`CyWee’s experts confirmed this new interpretation. Dkt. No. 67 at 21; Ex. 3 ¶ 61; Ex. 4 ¶ 67.
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`This interpretation directly contradicts the Court’s prohibition that Samsung cannot argue that a
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`“3D pointing device” requires a cursor or pointer on a display. Therefore, CyWee’s arguments
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`before the PTAB demonstrate that this prohibition was not warranted and should be
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`reconsidered.
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`CyWee’s PTAB arguments are even more striking when considering the different claim
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`construction standards applicable in IPRs as compared with district court litigation. In an IPR,
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`claim terms are given their broadest reasonable interpretation (“BRI”). In re Cuozzo, 793 F.3d at
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`1279. In district court litigation, claim terms are construed in accordance with their ordinary and
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`customary meaning. See Phillips, 415 F.3d at 1312–13. Although there is some overlap, the
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`-3-
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`Case 2:17-cv-00140-WCB-RSP Document 179 Filed 10/03/18 Page 6 of 7 PageID #: 7735
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`Phillips standard is generally accepted to yield potentially narrower constructions than the BRI
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`standard. “The broadest reasonable interpretation of a claim term may be the same as or broader
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`than the construction of a term under the Phillips standard. But it cannot be narrower.” 2
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`Facebook, Inc. v. Pragmatus AV, LLC, 582 F. App’x 864, 869 (Fed. Cir. 2014).
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`That difference in standards makes CyWee’s proposed construction before the PTAB all
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`the more striking. CyWee’s position to the PTAB is that the broadest reasonable interpretation of
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`“3D pointing device” requires that the device point to or control a pointer (or similar graphic) on
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`a display. Yet, here, CyWee argued that the “3D pointing device” did not require such a pointer
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`or cursor even when viewed under the narrower Phillips standard. CyWee should not be allowed
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`to obtain a broader construction under the Phillips standard before this Court than it argued was
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`proper under the BRI standard before the PTAB.
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`V.
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`CONCLUSION
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`For these reasons, Samsung respectfully requests that the Court reconsider its prohibition
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`against Samsung arguing to the jury that the plain and ordinary meaning of “3D pointing device”
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`requires a cursor or pointer on a display.
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`DATED: October 3, 2018
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`Respectfully submitted,
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`By: /s/ Christopher W. Kennerly
`Christopher W. Kennerly
`TX Bar No. 00795077
`chriskennerly@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Ave.
`Palo Alto, California 94304
`Telephone: (650) 320-1800
`Facsimile:
`(650) 320-1900
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`
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`2 Samsung takes no position as to whether CyWee’s proposed construction is correct under the
`BRI standard.
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`-4-
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`Case 2:17-cv-00140-WCB-RSP Document 179 Filed 10/03/18 Page 7 of 7 PageID #: 7736
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`Elizabeth L. Brann (pro hac vice)
`CA Bar No. 222873
`elizabethbrann@paulhastings.com
`Bob Chen (pro hac vice)
`CA Bar No. 273098
`bobchen@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, California 92121
`Telephone: (858) 458-3000
`Facsimile:
`(858) 458-3005
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`Melissa R. Smith
`TX Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
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`Attorneys for Defendants
`SAMSUNG ELECTRONICS CO., LTD AND
`SAMSUNG ELECTRONICS AMERICA,
`INC.
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document was filed
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`electronically in compliance with Local Rule CV-5 on October 3, 2018. As of this date, all
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`counsel of record had consented to electronic service and are being served with a copy of this
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`document through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A).
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-5-
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