Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 1 of 7 PageID #: 10511
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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 MOTION TO STRIKE
`PLAINTIFF’S UNTIMELY SUPPLEMENTAL INFRINGEMENT CHARTS
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CYWEE GROUP LTD.,
`
`Plaintiff
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`v.
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`SAMSUNG ELECTRONICS CO. LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`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 MOTION TO STRIKE
`PLAINTIFF’S UNTIMELY SUPPLEMENTAL INFRINGEMENT CHARTS
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`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 2 of 7 PageID #: 10512
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`CyWee failed to timely supplement its infringement contention charts. It now blames
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`Samsung for the delay by attempting to manufacture a false narrative that Samsung withheld
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`source code and related information that would have allowed for timely supplementation. To the
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`contrary, Samsung offered to make relevant source code available for inspection on March 23,
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`2018 and identified the sensor fusion algorithm used by each accused product that same day.
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`Indeed, the source code CyWee cites in the supplemental charts at issue in this motion has been
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`available to CyWee since March 23, 2018. Because CyWee cannot provide any tenable excuse
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`for its delay in attempting to supplement, Samsung respectfully submits that its motion to strike
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`should be granted.
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`I.
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`CYWEE’S SUPPLEMENTATION WAS NOT TIMELY
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`Samsung has consistently been forthcoming about its products’ operation.
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`Further, CyWee cannot and does not dispute that each and every source code citation in
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`its supplemental charts is from code produced to CyWee in hard copy form on May 11, 2018.
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`The deadline for CyWee to supplement its infringement contentions to include that code was
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`thus June 11, 2018. Dkt. No. 35 at 2.
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`CyWee claims that the clock did not start until Samsung made fully-searchable source
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`code available for inspection.
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` Brann
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`Decl. (Dkt. No. 187-1), Ex. 14. Therefore, even under CyWee’s view of the world, the deadline
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`-1-
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`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 3 of 7 PageID #: 10513
`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 3 of 7 PageID #: 10513
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`for CyWee to supplement its infringement contentions to include that code was August 29 at the
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`latest. CyWee did not meet that deadline either.
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`CyWee attempts to explain away its failure to timely comply with the disclosure deadline
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`by falsely alleging that Samsung withheld relevant inf01mation during pre-suit negotiations,
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`failed to timely produce relevant source code during the fact discovely peliod, and offered an
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`Imprepared witness to testify regarding— None of these
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`excuses has any merit.
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`CyWee first complains that Sams1mg failed to provide details regarding the sensor fusion
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`source code used in each of the accused products dluing pre-suit negotiations, and alleges that
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`— CyWee does not explain how negotiations that took place
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`over a year and a half ago relate to its failure to timely supplement its infringement theories in
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`view of information it obtained during the discovery period.
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`Next, CyWee misleadingly argues that Samsrmg’s production of som‘ce code plintouts
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`and other information in March and May 2018 did not provide CyWee adequate information to
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`supplement its infiingement theories. However, the code CyWee cites in its supplemental charts
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`is the same code Sams1mg made available for inspection on March 23 and produced in printed
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`form on May 11.
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`Fluther, despite knowing the specific version of sensor fusion som‘ce code used by each
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`accused product and having a printed version of- sensor fusion source code for months
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`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 4 of 7 PageID #: 10514
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`before the depositions of Samsung’s corporate witnesses, CyWee again tries to point the finger at
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`Samsung for its own delay in supplementing its infringement contentions by falsely alleging that
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`Notwithstanding its attempts to shift blame to Samsung for its own failure to supplement
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`its infringement contentions, CyWee cannot obscure the fact that it had information and access to
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`source code adequate to supplement its infringement contentions by March 23 yet still failed to
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`attempt to supplement until September 10. CyWee cannot credibly argue that it timely
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`supplemented its infringement contentions.
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`II.
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`CYWEE LACKS GOOD CAUSE TO SUPPLEMENT
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`CyWee does not have good cause to supplement, as required under Patent L.R. 3-6. To
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`the contrary, none of CyWee’s arguments addressing the four factors considered by Fifth Circuit
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`Courts have merit.
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`First, CyWee cannot justify its delay in supplementing. Instead, CyWee offers nothing
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`more than unsupported excuses. As detailed in the preceding section, CyWee attempts to justify
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`its own lack of diligence by blaming Samsung, but the facts do not support its excuses.
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`Second, although the information to be supplemented is important to this case, CyWee
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`states that that “[t]he supplements do not fundamentally alter CyWee’s damages or infringement
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`theories, and . . . are based upon information that Samsung has had in its sole possession
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`-3-
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`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 5 of 7 PageID #: 10515
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`throughout this case and even earlier during pre-Litigation negotiations that began in June of
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`2016.” Dkt. 206 at 14. To the contrary, CyWee’s infringement theories have changed, as seen
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`clearly in its expert report served just last week. Supp. Brann Decl., Ex. 23.
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`Third, Samsung has been prejudiced by the delay.
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` Accordingly, given that CyWee’s supplemental charts set forth a new,
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`fundamentally different infringement theory, Samsung will suffer significant unfair prejudice
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`unless CyWee’s supplemental charts are struck.
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`Fourth, no continuance would cure the unfair prejudice to Samsung. CyWee states that a
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`continuance would not be necessary because a trial date for the case has not yet been set and
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`expert discovery has just begun. However, that ignores the fact that Samsung is already deep into
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`the process of preparing its rebuttal expert reports based on the new infringement theory CyWee
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`only just disclosed. Further, this case has already been delayed by CyWee on multiple occasions
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`and Samsung is eager to bring it to a close. A continuance would only compound the unfair
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`prejudice to Samsung.
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`In light of the applicable factors, CyWee cannot demonstrate good cause to supplement
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`and its supplement charts should be stricken.
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`III. CONCLUSION
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`Despite its numerous excuses, CyWee failed to timely supplement its infringement
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`contentions and has not demonstrated good cause to supplement now. Indeed, Samsung would
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`suffer considerable unfair prejudice if supplementation were permitted, given that CyWee’s
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`-4-
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`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 6 of 7 PageID #: 10516
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`supplemental charts disclose an entirely new infringement theory. Accordingly, Samsung
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`respectfully requests that the Court strike CyWee’s supplemental charts.
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`DATED: October 18, 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
`
`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
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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
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`-5-
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`Case 2:17-cv-00140-WCB-RSP Document 224 Filed 10/22/18 Page 7 of 7 PageID #: 10517
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`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 18, 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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`-6-
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