Case 2:17-cv-00140-WCB-RSP Document 209 Filed 10/16/18 Page 1 of 9 PageID #: 10182
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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-RWS-RSP
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`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S REPLY IN SUPPORT OF THEIR MOTION FOR
`SUMMARY JUDGMENT OF INVALIDITY UNDER 35 U.S.C. § 101
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`Case 2:17-cv-00140-WCB-RSP Document 209 Filed 10/16/18 Page 2 of 9 PageID #: 10183
`Case 2:17-cv-00140-WCB-RSP Document 209 Filed 10/16/18 Page 2 of 9 PageID #: 10183
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`I.
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`INTRODUCTION
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`CyWee’s fact and expert witnesses agree: the patents—in—suit claim standard, conventional
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`components to collect data to be manipulated with an algorithm. That places the asserted claims
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`squarely within controlling case law that holds such inventions unpatentable. CyWee attempts to
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`generate issues of fact by ignoring the patent specifications and the clear admissions made by its
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`fact and expert witnesses. CyWee cannot, however, explain away the critical facts that lead to the
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`inescapable conclusion of invalidity. Thus, Samsrmg’s motion for summary judgment should be
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`granted and the patents—in—suit declared invalid under 35 U.S.C. § 101 .1
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`II.
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`CYWEE CANNOT DISPUTE THAT THREE-AXIS GYROSCOPES
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`ACCELEROMETERS AND MAGNETOMETERS WERE KNOWN IN THE ART
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`CyWee’s fact and expert witnesses, and the patents-in-suit themselves, admit that three-
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`axis gyr‘oscopes, accelerometers, and magnetometers were already known in the prior art, both
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`alone and in combination. There are two key sets of admissions: (1) those claimed sensors were
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`generic, well-known components before CyWee filed its patents;2 and (2) combining multiple
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`types of such sensors was known before CyWee filed its patents.
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`1 CyWee claims that the Southern District of California ah‘eady rejected Samsrmg’s arguments in
`Cv Wee v. LG Electronics, but that court only ruled that LG’s motion, filed at the pleadings stage,
`was premature.
`2 CyWee does not dispute that 3D pointing devices and processors too were generic, well—known
`components as of the time of filing.
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`Case 2:17-cv-00140-WCB-RSP Document 209 Filed 10/16/18 Page 3 of 9 PageID #: 10184
`Case 2:17-cv-00140-WCB-RSP Document 209 Filed 10/16/18 Page 3 of 9 PageID #: 10184
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`_—— _
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`And CyWee’s expert Nicholas Gans admits that accelerometers, magnetometers,
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`and gyroscopes were known and that arranging sensors in three-axis configurations was known
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`generally outside of the patent specifications: “To accurately measure motions along an arbitrary
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`axis, three like sensors are grouped together and aligned at right angles. Such a sensor set is
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`generally referred to as a 3-axis sensor.” Ex. 7 1] 9 (emphasis added). CyWee argues that this was
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`not an admission, but the relevant paragraph describes the disclosed technologies without citing
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`the specifications. 10’. Thus, in paragraph 9, Dr. Gans described what was known in the prior art
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`outside of the disclosures of the patents-in-suit. In contrast, when he discussed the disclosures of
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`the patents, he cited the specifications. See, e.g., id. 1H 8, 10. In fact, the ’438 Patent specification
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`describes the prior art as including a five-axis motion sensor consisting of a 3-axis accelerometer
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`and a 2-axis gyroscope. Ex. 1 at Col. 2:38—47. Therefore, CyWee cannot dispute that three-axis
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`gyroscopes, accelerometers, and magnetometers were generally known in the prior art before the
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`patents-in-suit were filed.
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`Third, combinations of accelerometers, gyroscopes, and magnetometers were standard
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`and well-known before CyWee made its claimed inventions. As discussed above, the patent
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`specifications refer to a prior art combination of accelerometers and gyroscopes. Ex. 1 at C01.
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`2:38—47; Ex. 11 at Col. 2:42—50. CyWee was not able to obtain allowance of its claims based
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`merely on the hardware components recited. Instead, it had to amend the claims in light of the
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`3 All exhibits referenced herein were attached to the Declaration of Elizabeth L. Brann in Support
`of Defendants’ Motion for Slmlmary Judgment (Dkt. No. 178).
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`Case 2:17-cv-00140-WCB-RSP Document 209 Filed 10/16/18 Page 4 of 9 PageID #: 10185
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`Nasiri reference (U.S. Pat. Pub. 2009/0262074), which discloses a device that uses three-axis
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`accelerometers, three-axis gyroscopes, and three-axis magnetometers. Ex. 8 at 3–4; Ex. 9
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`¶¶ 0017, 0049, 0053; Ex. 12 at 4–5. Given Nasiri’s disclosure of all the claimed sensors, CyWee
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`was forced to modify the claimed algorithms to obtain allowance of its patents. Ex. 10; Ex. 13 at
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`2–3. Therefore, CyWee cannot credibly dispute that the sensors recited in the patent claims were
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`generic components known in the prior art, whether alone or in combination.
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`III. THE ASSERTED CLAIMS ARE DIRECTED TO AN ABSTRACT IDEA
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`The patents-in-suit are directed to a mathematical algorithm, not to sensors. Under any
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`fair reading, the ’438 and ’978 Patents merely claim a mathematical algorithm for computing the
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`direction a “3D pointing device” is pointing by manipulating two (’438 Patent) or three (’978
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`Patent) sets of sensor data. At most, they require standard, generic structures to collect the data
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`and execute the algorithm. Given that the patents merely claim a mathematical algorithm, they
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`are directed to an abstract idea and fail step one of the Alice test. Alice Corp. Pty. Ltd. v. CLS
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`Bank Int’l, 134 S. Ct. 2347, 2354 (2014).
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`CyWee cites another of its patents, U.S. Patent No. 8,373,658 (“the ’658 Patent”), which
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`is unrelated to the patents-in-suit, as an example of a two-axis gyroscope and as evidence that the
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`arrangement of sensors in the patents asserted here is non-conventional. Dkt. No. 192 at 19–20.
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`That ’658 Patent, however, is further evidence that the sensors claimed here are not arranged in
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`any particular manner. The figure shown in CyWee’s opposition specifically depicts the spatial
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`relationship between a two-axis gyroscope and a G-sensor, even specifying the angle between
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`them. Id. at 20. Thus, CyWee’s other patent is closer to the patent described in Thales Visionix,
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`Inc. v. United States, 850 F.3d 1343 (Fed. Cir. 2017).
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`The differences between the patents-in-suit here and the ’658 Patent demonstrate why the
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`patents-in-suit are not directed to patent-eligible subject matter. The patents-in-suit merely depict
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`-3-
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`Case 2:17-cv-00140-WCB-RSP Document 209 Filed 10/16/18 Page 5 of 9 PageID #: 10186
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`black box sensors and do not depict or describe any special relationship or configuration between
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`them. Ex. 1 at Figs. 3, 6, Col. 7:36–55, Col. 10:9–41; Ex. 11 at Figs. 3, 6, Col. 9:14–45, Col.
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`13:5–47. The asserted claims further do not specify any relationship or configuration among the
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`recited sensors.
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`Indeed, asserted Claims 14 and 19 of the ’438 Patent and Claim 10 of the ’978 Patent are
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`method claims directed to an algorithm, not to the configuration of sensors. CyWee admits in its
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`opposition that Figure 7 of the ’438 Patent maps directly onto Claim 14. Dkt. No. 192 at 11–12.
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`Yet Figure 7 merely sets forth aspects of a mathematical algorithm and contains no disclosure of
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`any specific configuration of sensors. Ex. 1 at Fig. 7. CyWee admits that the ’978 Patent claims
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`include the same seven-step algorithm as in the ’438 Patent. Ex. 2 at 4. The only apparatus claim
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`is Claim 1 of the ’438 Patent, but it too does not specify any configuration of sensors. Moreover,
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`that claim was only allowed on the basis of the recited algorithm. Ex. 1 at Col. 18:54–19:26; Ex.
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`10. CyWee therefore cannot dispute that the asserted claims are directed to the recited algorithm,
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`not any particular relationship or configuration of the sensors.
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`CyWee cites Parker v. Flook, 437 U.S. 584 (1978), and Digitech Image Technologies,
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`LLC v. Electronics For Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014), but ignores the central
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`holdings of those cases. As described in Samsung’s motion, Flook is on point here because it
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`addressed the application of a mathematical algorithm to measured values. 437 U.S. at 585–86.
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`Although the claims did not cover every conceivable application of the algorithm, the Court
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`found that the claims were in fact directed to that algorithm. Id. at 593. Here, similarly, although
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`the claims do include some structural limitations, the claims are not directed to those limitations.
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`Instead, they are directed to the specific algorithm for combining measurements from the sensors
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`to determine the attitude or orientation of the device.
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`-4-
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`Case 2:17-cv-00140-WCB-RSP Document 209 Filed 10/16/18 Page 6 of 9 PageID #: 10187
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`CyWee incorrectly analogizes its patents to those in McRO, Inc. v. Bandai Namco Games
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`America Inc., 837 F.3d 1299 (Fed Cir. 2016). In McRO, the asserted patent contained a very
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`specific method of automatically animating lip movement and facial expressions, specifically
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`defining a genus of rules to be applied. Id. at 1307–08. Those specific, defined rules allowed
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`computers to do something that previously could only be done by human animators. Id. at 1313.
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`Here, in contrast, the claimed algorithms merely take data outputs from sensors and compute the
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`device’s orientation. Therefore, McRO is inapposite.
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`Diamond v. Diehr, 450 U.S. 175 (1981), is also inapposite. There, the claims were
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`directed to an improved method of molding rubber articles. Id. at 181. Although the claims did
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`require the application of an algorithm, they “were not directed to a mathematical algorithm or
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`an improved method of calculation.” Id. Here, CyWee’s claims merely cover an algorithm that
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`outputs angles reflecting the device’s orientation and at best claim generic components to
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`generate the inputs and execute the algorithm. Therefore, CyWee’s claims cannot be analogized
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`to those in Diehr. Instead, they are directed to a mathematical algorithm and hence an abstract
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`idea, failing Alice step one.
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`IV.
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`THE ASSERTED CLAIMS DO NOT CONTAIN AN INVENTIVE CONCEPT.
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`The asserted claims of the patents-in-suit further fail step two of the Alice test because the
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` experts’ admissions, as well as the intrinsic evidence, demonstrate conclusively
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`that there is no inventive concept recited in the claims. Each and every hardware limitation was
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`already well-known and conventional before CyWee filed its patents. See Section II, supra.
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`CyWee cannot explain away these material admissions.
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`CyWee’s cited case law reflects that admissions in the patent specifications to the effect
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`that recited claim elements are well-understood, routine, and conventional make it difficult, if not
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`impossible, for a patentee to show a genuine dispute sufficient to avoid summary judgment of
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`-5-
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`Case 2:17-cv-00140-WCB-RSP Document 209 Filed 10/16/18 Page 7 of 9 PageID #: 10188
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`invalidity. Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1356 (Fed. Cir.
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`2018). Here, both patent specifications reflect that a five-axis motion sensor module, including a
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`three-axis accelerometer and a two-axis gyroscope, was known. Ex. 1 at Col. 2:38–47; Ex. 11 at
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`Col. 2:42–50. CyWee cannot credibly claim (though it does in its opposition) three-axis sensors
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`were not conventional when it filed its patents. Dkt. No. 192 at 3–5.
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`Similarly, the prosecution histories show that CyWee was not able to obtain allowance of
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`the asserted claims on the basis of the recited sensors. Instead, the claims were allowed due to a
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`very specific portion of the recited algorithm. Specifically, the claims were rejected in view of
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`Nasiri (U.S. Pat. Pub. 2009/0262074), which discloses a device with three-axis accelerometers,
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`three-axis gyroscopes, and three-axis magnetometers. Ex. 8 at 3–4; Ex. 9 ¶¶ 0017, 0049, 0053;
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`Ex. 12 at 4–5. Therefore, CyWee could not argue that the claims were allowable because they
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`recited a six-axis (or nine-axis) motion sensor module or other components. Instead, CyWee
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`obtained allowance solely because of the recited algorithms, specifically that the predicted axial
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`accelerations are calculated without using derivatives of the measured angular velocities (’438
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`Patent) and that predicted magnetisms are included in the calculation (’978 Patent). Ex. 10; Ex.
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`13. Such limitations, however, are mere steps in a mathematical algorithm, demonstrating that
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`the asserted claims do not recite an inventive concept and thus fail Alice step two.
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`V.
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`CONCLUSION
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`The patents-in-suit claim little more than the steps of a mathematical algorithm. The sole
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`claimed structures were well-known and conventional before CyWee filed its patents. Therefore,
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`Samsung respectfully requests that the Court find the patents invalid as directed to unpatentable
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`subject matter under 35 U.S.C. § 101.
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`-6-
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`Case 2:17-cv-00140-WCB-RSP Document 209 Filed 10/16/18 Page 8 of 9 PageID #: 10189
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`DATED: October 12, 2018
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`Respectfully submitted,
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`
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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
`
`Barry Sher (pro hac vice)
`NY Bar No. 2325777
`barrysher@paulhastings.com
`Zachary Zwillinger (pro hac vice)
`NY Bar No. 5071154
`zacharyzwillinger@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, New York 10166
`Telephone: (212) 318-6000
`
`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
`
`Melissa R. Smith
`TX Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
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`Attorneys for Defendants
`SAMSUNG ELECTRONICS CO., LTD AND
`SAMSUNG ELECTRONICS AMERICA,
`INC.
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`-7-
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`Case 2:17-cv-00140-WCB-RSP Document 209 Filed 10/16/18 Page 9 of 9 PageID #: 10190
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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 12, 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) and by email.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`CERTIFICATE OF AUTHORIZATION TO SEAL
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`I hereby certify that under Local Rule CV-5(a)(7), the foregoing document is filed under
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`seal pursuant to the Court’s Protective Order entered in this matter.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-8-
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