Case 2:17-cv-00140-WCB-RSP Document 287 Filed 01/15/19 Page 1 of 13 PageID #: 12719
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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 OPPOSITION TO
`PLAINTIFF’S MOTION FOR LEAVE TO SUPPLEMENT
`INFRINGEMENT CONTENTIONS AND EXPERT REPORTS
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CYWEE GROUP LTD.,
`
`Plaintiff
`
`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`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 OPPOSITION TO
`PLAINTIFF’S MOTION FOR LEAVE TO SUPPLEMENT
`INFRINGEMENT CONTENTIONS AND EXPERT REPORTS
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`Case 2:17-cv-00140-WCB-RSP Document 287 Filed 01/15/19 Page 2 of 13 PageID #: 12720
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`CyWee has no explanation for its failure to adequately analyze and investigate
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`Qualcomm’s sensor fusion source code. It certainly cannot justify leave to supplement its
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`infringement contentions and expert report. Despite having more than two months to analyze
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`Qualcomm’s source code and deposing a Qualcomm witness specifically regarding that source
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`code, CyWee inexplicably failed to properly develop support for its infringement theory relating
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`to Claim 10 of the ’978 Patent. Though CyWee now attempts to take another bite at the apple by
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`blaming Samsung and Qualcomm for its failure, CyWee has only itself to blame. Samsung
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`respectfully requests that CyWee’s motion for leave be denied.
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`I.
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`BACKGROUND
`A.
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`The Relevant Qualcomm Sensor Fusion Source Code
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`Although Qualcomm’s sensor fusion algorithm is made up of multiple independent
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`source code files, the source code file relevant to CyWee’s motion for leave
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`-1-
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`Case 2:17-cv-00140-WCB-RSP Document 287 Filed 01/15/19 Page 3 of 13 PageID #: 12721
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`As shown in
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`B.
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`CyWee’s Review of the Qualcomm Sensor Fusion Source Code
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`Qualcomm made its sensor fusion source code available for inspection by CyWee on July
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`25, 2018. Dkt. No. 250 at 4. After CyWee’s expert, Dr. Nicholas Gans, reviewed the Qualcomm
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`source code on August 6 and 7, CyWee advised Qualcomm on August 10 that Dr. Gans
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`Notably, CyWee did not allege that it lacked source code related to
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`4–5.
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`1 In particular, CyWee stated:
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`Case 2:17-cv-00140-WCB-RSP Document 287 Filed 01/15/19 Page 4 of 13 PageID #: 12722
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`C.
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`CyWee’s Deposition of Qualcomm’s Source Code Witness and First Motion
`for Leave to Belatedly Supplement Its Infringement Contentions to Address
`Qualcomm’s Source Code
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`
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`CyWee deposed Mr. Lnu, Qualcomm’s designated deponent regarding its sensor fusion
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`algorithm on October 2, 2018. During that deposition, Mr. Lnu responded to CyWee’s questions,
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`. Dkt. No. 270-1 ¶ 2. Of particular relevance to
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`CyWee’s current (second) motion for leave, CyWee explicitly questioned Mr. Lnu
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` Mr. Lnu did not decline to answer—nor was he unable to answer—any of the
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`questions posed by CyWee related to the Qualcomm source code’s
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`The same day it deposed Mr. Lnu (October 2, 2018), CyWee moved for leave to amend
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`its infringement contentions, arguing that it had not been afforded an adequate opportunity to
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`develop its infringement positions directed to accused products that use Qualcomm’s sensor
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`fusion algorithm. Dkt. No. 176. The Court granted that motion, allowing CyWee to amend its
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`infringement contentions and expert reports to address its infringement positions for the devices
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`that use Qualcomm’s sensor fusion algorithm. Dkt. No. 177.
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`-3-
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`Case 2:17-cv-00140-WCB-RSP Document 287 Filed 01/15/19 Page 5 of 13 PageID #: 12723
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`D.
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`Dr. Brown’s Analysis of Qualcomm’s Sensor Fusion Source Code
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`On October 22, 2018 CyWee served the expert report of Dr. Richard Brown regarding
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`alleged infringement of the asserted patents. In that report, Dr. Brown opines that the accused
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`devices that implement Qualcomm’s sensor fusion code (“the Qualcomm Code Devices”)
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`infringe Claim 10 of the ’978 Patent.
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`To support his opinion that the Qualcomm Code Devices infringe the “obtaining”
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`limitation of Claim 10 of the ’978 Patent, Dr. Brown concludes that “
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`2. He further states that
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` Dr. Brown does not allege that
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` and that
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`E.
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`Dr. Mercer’s Analysis of the Accused Products That Implement Qualcomm’s
`Source Code
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`On December 3, 2018, Samsung served the expert report of Dr. Ray Mercer regarding
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`non-infringement of the asserted patents. To confirm the accuracy of his analysis of Qualcomm’s
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`sensor fusion algorithm, Dr. Mercer conferred with Qualcomm’s witness, Mr. Lnu, on November
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`30, 2018. During that discussion, Mr. Lnu was asked about
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` Mr. Lnu confirmed to Dr. Mercer that
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`Case 2:17-cv-00140-WCB-RSP Document 287 Filed 01/15/19 Page 6 of 13 PageID #: 12724
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`F.
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`Samsung’s Deposition of Dr. Brown
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`Samsung deposed Dr. Brown on January 4, 2019. During his deposition, Dr. Brown
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`stated that,
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` He also admitted that the analysis
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`directed to the “obtaining” limitation of Claim 10 in his expert report
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`II.
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`LEGAL STANDARD
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`Patent L.R. 3-1(c) requires a party asserting infringement to provide each defending party
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`“a chart identifying specifically where each element of each asserted claim is found within each
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`Accused Instrumentality.” To comply with Patent L.R. 3-1, infringement contentions must set
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`forth a party’s “particular theories of infringement with sufficient specificity to provide
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`defendants with notice of infringement beyond that which is provided by the mere language of
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`the patent [claims] themselves.” ConnecTel, LLC v. Cisco Sys., Inc., 391 F. Supp. 2d 526, 527–
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`28 (E.D. Tex. 2005).
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`Under Patent L.R. 3-6, a party can amend its infringement contentions only “by order of
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`the Court, which shall be entered only upon a showing of good cause.” Patent L.R. 3-6(b). Good
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`cause in this context requires “a showing of diligence” from the plaintiff. See O2 Micro Int’l,
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`Ltd. v. Monolithic Power Sys., 467 F.3d 1355, 1366 (Fed. Cir. 2006). In considering whether
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`there is good cause for leave to amend, courts consider: “(1) the explanation for the failure to
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`meet the deadline; (2) the importance of the thing that would be excluded if the proposed
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`amendment is not allowed; (3) potential prejudice in allowing the thing that would be excluded;
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`and (4) the availability of a continuance to cure such prejudice.” Packet Intelligence LLC v
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`NetScout Sys., Inc., No. 2:16-CV-230-JRG, 2017 WL 2531591, at *1 (E.D. Tex. Apr. 27, 2017)
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`-5-
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`Case 2:17-cv-00140-WCB-RSP Document 287 Filed 01/15/19 Page 7 of 13 PageID #: 12725
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`(quoting Mears Techs., Inc. v. Finisar Corp., No. 2:13-CV-376-JRG, 2014 WL 12605571, at *1
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`(E.D. Tex. Oct. 6, 2014)).
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`Expert reports may not introduce theories that were not previously set forth in the
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`contentions required by the Patent Local Rules. See L.C. Eldridge Sales Co. v. Azen Mfg. PTE.,
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`Ltd., No. 6:11-cv-599, 2013 U.S. Dist. LEXIS 186309, at *17 (E.D. Tex. Oct. 11, 2013). In
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`particular, under the Court’s Discovery Order:
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`If a party claiming patent infringement asserts that a claim element
`is a software limitation, the party need not comply with P.R. 3-1
`for those claim elements until 30 days after source code for each
`Accused Instrumentality is produced by the opposing party.
`Thereafter, the party claiming patent infringement shall identify,
`on an element-by-element basis for each asserted claim, what
`source code of each Accused Instrumentality allegedly satisfies the
`software limitations of the asserted claim elements.
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`Dkt. No. 35 at 2.
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`III. ARGUMENT
`A.
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`CyWee Already Had An Opportunity to Amend Its Infringement
`Contentions And Supplement Its Expert Reports To Address Alleged
`Infringement by The Accused Qualcomm Devices
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`CyWee goes to great lengths to reiterate its supposed difficulties in obtaining
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`Qualcomm’s sensor fusion source code, but none of those supposed difficulties has any bearing
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`on its present request for leave. The Court already granted CyWee leave to supplement its expert
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`reports to address Qualcomm’s source code. Dkt. No. 250. Any prejudice that may have been
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`imposed on CyWee due to allegedly insufficient time to prepare its infringement allegations
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`directed to the Qualcomm Code Devices has already been remedied.
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`CyWee’s request for leave to amend is a tacit admission that it did not properly disclose
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`all of its infringement theories in its infringement contentions and expert reports. Although
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`CyWee now alleges that
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`-6-
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`Case 2:17-cv-00140-WCB-RSP Document 287 Filed 01/15/19 Page 8 of 13 PageID #: 12726
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`“obtaining” limitation of Claim 10 of the ’978 Patent in his expert report, Dr. Brown states that
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` Specifically, in his analysis of the
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`Contrary to its representations otherwise, CyWee had adequate time to analyze
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`Qualcomm’s source code and an adequate opportunity to investigate that source code
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`B.
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`CyWee Has No Reasonable Excuse for Failing to Timely Assert All of Its
`Infringement Theories
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`In an attempt to avoid the consequences of its failure to timely disclose its infringement
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`theories, CyWee now advances a story that Samsung and Qualcomm improperly colluded by
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`discussing information about the operation of Qualcomm’s sensor fusion algorithm. Beyond bald
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`assertions, however, CyWee provides no basis for why such a discussion would be improper.
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`Indeed, Qualcomm is free to handle its own proprietary technical information as it chooses, and
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`Qualcomm was well within its rights to discuss details about its sensor fusion source code with
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`Dr. Mercer. Qualcomm is also free to decide not to disclose technical details to other third
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`parties, unless the request for those technical details is accompanied by an enforceable subpoena.
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`Here, Qualcomm chose to require that CyWee serve a subpoena to depose its witness regarding
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`-7-
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`Case 2:17-cv-00140-WCB-RSP Document 287 Filed 01/15/19 Page 9 of 13 PageID #: 12727
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`Qualcomm’s sensor fusion algorithm, and Qualcomm and its designated witness complied with
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`that subpoena.
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`CyWee’s arguments related to its deposition of Qualcomm’s witness have no merit. First,
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`CyWee mischaracterizes what was asked about the Qualcomm source code during the
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`deposition. Specifically, their self-serving attorney declaration states that CyWee asked questions
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`At a minimum, adequate source code review would at least have brought into question
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` But CyWee either did not know what
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` and
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`chose to remain willfully ignorant about lines of code it relied upon to prove its infringement
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`theory, or it knew what
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` In either event, CyWee chose not to ask a single question about any of
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`those lines of source code that it ultimately relied upon to prove its infringement theory, and also
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`chose not to provide any other theory in the alternative.
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`CyWee also notes that Samsung did not ask Qualcomm’s witness any questions at the
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`deposition, implying that Samsung did not need to ask questions because it otherwise has access
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`to that witness. Not only does Samsung have no duty to depose a third-party witness in an effort
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`to remedy CyWee’s inadequate deposition, CyWee’s suggestion that Samsung chose not to ask
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`2 As Dr. Brown admitted, one is able to determine from inspection of the sourec code
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`Case 2:17-cv-00140-WCB-RSP Document 287 Filed 01/15/19 Page 10 of 13 PageID #:
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`questions for some improper reason is plainly false. It is CyWee’s burden to prove infringement,
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`not Samsung’s. And, at the time of the deposition, Samsung had no information as to what
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`source code CyWee would later allege practices the “obtaining” limitation of Claim 10 of the
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`’978 Patent, let alone that CyWee would
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`Only after receiving Dr. Brown’s report regarding alleged infringement by the Qualcomm
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`Code Devices on October 22, 2018 did Samsung have any knowledge regarding CyWee’s
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`infringement theory. In reviewing the accused sections of source code, Samsung’s technical
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`experts noted a number of issues—
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`—and requested that Qualcomm’s witness provide information regarding those
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`issues. Samsung reached out to Qualcomm to confirm its analysis. All that said, the fact that
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`Samsung’s technical experts identified the potential issue and Mr. Lnu confirmed that analysis
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`are ultimately irrelevant to any basis CyWee proffers in support of its leave to amend. Nothing
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`changes the simple fact that CyWee
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` to prove its infringement theory,
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`chose not to provide any other theory in the alternative, and was unaware of its failure in proof
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`due to its own inadequate investigation.
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`C.
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`Samsung Would Be Substantially Prejudiced if CyWee Were Allowed to
`Again Shift Its Infringement Theory
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`Samsung will suffer significant unfair prejudice if CyWee is allowed to again supplement
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`its expert report to assert yet another theory of infringement. After already completing all of its
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`expert reports and conducting a number of expert depositions of CyWee’s witnesses—including
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`the deposition of Dr. Brown—Samsung and its experts would be forced to analyze an entirely
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`new infringement theory for the “obtaining” limitation of Claim 10 of the ’978 Patent. Samsung
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`-9-
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`Case 2:17-cv-00140-WCB-RSP Document 287 Filed 01/15/19 Page 11 of 13 PageID #:
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`would also be forced to depose Dr. Brown again to address his opinions regarding that new
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`infringement theory.
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`With the close of expert discovery on January 10, 2019 and impending deadlines to file
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`motions to strike expert testimony and dispositive motions on February 6, 2019, Dkt. No. 244,
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`requiring Samsung to backtrack now to address CyWee’s ever-shifting infringement positions
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`would be unduly prejudicial and disrupt the Court’s schedule. Delay of those February 6
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`deadlines adequate to allow CyWee to address its mistake and allow Samsung to respond to
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`CyWee’s new allegations would undoubtedly impact the current March 19 deadline to serve
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`pretrial disclosures and other subsequent deadlines in the current case schedule. See id.
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`CyWee has already benefitted from multiple schedule extensions in this case. Dkt. Nos.
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`96, 123, 156, 250. As discussed above, those extensions should have more than remedied any
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`prejudice allegedly suffered by CyWee in its discovery related to Qualcomm’s sensor fusion
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`source code. Further delaying the case is not warranted.
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`IV. CONCLUSION
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`Despite having ample time to analyze Qualcomm’s sensor fusion source code and an
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`opportunity to depose a Qualcomm witness regarding that source code, CyWee concedes that it
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`did not address all of its infringement theories directed to Claim 10 of the ’978 Patent. CyWee
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`now attempts to blame Samsung and Qualcomm for that failure, but the blame rests on CyWee
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`alone. To avoid further unnecessary and undue burden in this case, Samsung respectfully
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`requests that the Court deny CyWee’s motion for leave to further supplement its infringement
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`contentions and expert reports regarding the Qualcomm Code Devices.
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`-10-
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`Case 2:17-cv-00140-WCB-RSP Document 287 Filed 01/15/19 Page 12 of 13 PageID #:
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`DATED: January 11, 2019
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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
`Facsimile:
`(212) 319-4090
`
`Elizabeth L. Brann (pro hac vice)
`CA Bar No. 222873
`elizabethbrann@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, California 92121
`Telephone: (858) 458-3000
`Facsimile:
`(858) 458-3005
`
`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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`-11-
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`Case 2:17-cv-00140-WCB-RSP Document 287 Filed 01/15/19 Page 13 of 13 PageID #:
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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 January 11, 2019. 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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`-12-
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