Case 2:17-cv-00140-WCB-RSP Document 315 Filed 02/07/19 Page 1 of 8 PageID #: 16184
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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 TO STRIKE PLAINTIFF’S INDUCED INFRINGEMENT ALLEGATIONS
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`Case 2:17-cv-00140-WCB-RSP Document 315 Filed 02/07/19 Page 2 of 8 PageID #: 16185
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`CyWee waited until it served its expert reports on October 8, 2018 to disclose its induced
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`infringement theory. As a result, Samsung had very little time to analyze the third-party software
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`applications CyWee relies upon to support that theory. There is now no remedy to avoid unfair
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`prejudice to Samsung, other than to strike that theory as untimely.
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`CyWee argues that the Patent Local Rules do not require a party to disclose the basis for
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`its induced infringement allegations in its contentions, and that Samsung had adequate notice
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`based on CyWee’s complaints, infringement contentions, and discovery requests. However,
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`CyWee has not set forth any support for its claim that it need not disclose any detail regarding its
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`induced infringement theory in its contentions, and none of CyWee’s prior disclosures contain
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`sufficient detail to provide adequate notice.
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`CyWee cannot justify its failure to timely and adequately disclose its induced
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`infringement allegations. Samsung therefore respectfully requests that the Court strike those
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`allegations from Dr. Brown’s and Dr. LaViola’s expert reports and preclude CyWee from
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`presenting that theory at trial.
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`I.
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`CYWEE DID NOT TIMELY DISCLOSE ADEQUATE DETAIL REGARDING
`ITS INDUCED INFRINGEMENT THEORY
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`CyWee failed to adequately disclose its induced infringement allegations during fact
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`discovery and still has not done so. CyWee brushes aside its failure, arguing that Samsung had
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`adequate notice because CyWee pursued discovery regarding third-party applications and
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`identified the standard Android function remapCoordinateSystem(), which CyWee alleges might
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`be used by third-party applications to generate the “transformed output” required by Claim 10 of
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`the ’978 Patent. Even assuming CyWee’s representations are true, those disclosures still fail to
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`provide notice of its induced infringement theory. For example, Claim 10 of the ’978 Patent
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`requires that a “transformed output” be generated using an “orientation output” and a “rotation
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`Case 2:17-cv-00140-WCB-RSP Document 315 Filed 02/07/19 Page 3 of 8 PageID #: 16186
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`output.” To adequately disclose its theory of induced infringement as to that limitation, CyWee
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`needed to allege facts showing that the Accused Products use source code that generates a
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`transformed output using both a “rotation output” and an “orientation output.”
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`CyWee points to its infringement contentions, its discovery requests, and its complaints
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`in this case and others to argue that it provided adequate notice. CyWee muddles the distinction
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`between notice that CyWee has an induced infringement theory and notice of what that theory
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`is. None of CyWee’s alleged disclosures contain the detail required in a party’s infringement
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`contentions under this Court’s Patent Local Rule 3-1, which required CyWee to “provide
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`infringement contentions setting forth ‘particular theories of infringement with sufficient
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`specificity to provide defendants with notice of infringement beyond that which is provided by
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`the mere language of the patent [claims] themselves.’” Motion Games, LLC v. Nintendo Co., No.
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`6:12-cv-878-RWS-JDL, 2015 WL 1774448, at *1 (E.D. Tex. Apr. 16, 2015) (alteration in
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`original) (quoting STMicroelecs., Inc. v. Motorola, Inc., 308 F. Supp. 2d 754, 755 (E.D. Tex.
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`2004)) (emphasis added).
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`CyWee argues that its complaints in this case contain adequate facts to support its claim
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`of induced infringement. However, both of CyWee’s complaints contain only conclusory
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`allegations of induced infringement. Moreover, the specificity required of infringement
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`contentions under this Court’s Patent Local Rules is much higher than what is required of a
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`complaint under the Federal Rules. See, e.g., Pers. Audio, LLC v. Google, Inc., No. 1:15-CV-
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`350, 2017 U.S. Dist. LEXIS 122635, at *11–12 (E.D. Tex. May 15, 2017). CyWee thus cannot
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`rely on Samsung’s decision not to move to dismiss the induced infringement claims in CyWee’s
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`complaint and the fact that such claims survived motions to dismiss filed by HTC and Huawei in
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`other cases to demonstrate the sufficiency of its disclosures.
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`-2-
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`Case 2:17-cv-00140-WCB-RSP Document 315 Filed 02/07/19 Page 4 of 8 PageID #: 16187
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`CyWee alleges that the claim charts accompanying its complaints disclose its induced
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`infringement theory. But those claim charts merely refer to a standard Android function
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`remapCoordinateSystem() that would have to be called by a third-party application to generate a
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`“transformed output.” CyWee’s claim charts do not identify any third-party application that
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`actually uses remapCoordinateSystem() nor do they provide any detail about how that function
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`actually uses a “rotation output” and “orientation output” to generate a transformed output, as
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`required by Claim 10 of the ’978 Patent.
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`CyWee also argues the claim charts accompanying its infringement contentions (served
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`July 12, 2017, September 18, 2017, September 10, 2018, and October 4, 2018) provided notice
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`of its induced infringement theory. However, like the claim charts served with CyWee’s
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`complaints, its infringement contention claim charts do not mention any of the third-party
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`applications upon which CyWee now relies. Although those claim charts “reference the
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`remapCoordinateSystem() function,” Dkt. No. 294 at 3, they do not state how that function
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`would satisfy any limitation of any asserted claim.1
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`Further, CyWee asserts that discovery in this case provided Samsung notice of CyWee’s
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`induced infringement theory. But the suggestion that Samsung should have presumed CyWee’s
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`theory, without CyWee providing detail regarding that theory, and that Samsung should then
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`1 CyWee did not identify the Google Maps, Star Walk 2, Pokémon Go and Shooting Showdown
`applications in its contentions until its supplement on October 25, 2018, after CyWee was
`permitted to do so to address infringement based on Qualcomm’s source code. Dkt. No. 238 ¶ 4;
`Dkt. No. 277-12 (Mot., Ex. 11) at 27–28. Not only are those applications unrelated to Qualcomm
`source code, CyWee’s October 25 claim charts do not disclose whether those applications use
`remapCoordinateSystem() or how that function generates a transformed output using both an
`orientation output and a rotation output, as required by Claim 10 of the ’978 Patent. See id.
`While Dr. Brown’s report refers to source code for Star Walk 2 that allegedly implements
`remapCoordinateSystem(), he does not provide any opinion as to how that function generates a
`transformed output using both an orientation output and a rotation output. Dkt. No. 277-14
`(Mot., Ex. 13) ¶¶ 61–66. Dr. Brown admitted that he did not analyze source code for Google
`Maps, Pokémon Go, or Shooting Showdown. Ex. 21 at 33:24–34:7.
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`-3-
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`Case 2:17-cv-00140-WCB-RSP Document 315 Filed 02/07/19 Page 5 of 8 PageID #: 16188
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`have developed defenses against that presumed theory, is unreasonable. Regardless of discovery
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`relating to induced infringement, the fact remains that during the discovery period CyWee never
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`identified the specific third-party applications upon which its induced infringement theory rests,
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`and never detailed how use of remapCoordinateSystem() allegedly infringes any limitation of
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`any asserted claim. CyWee still has not adequately disclosed that theory.
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`II.
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`CYWEE CANNOT JUSTIFY ITS UNREASONABLE DELAY
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`CyWee cannot justify its failure to timely provide notice of its induced infringement
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`theory. CyWee’s argument that this Court’s Patent Local Rules do not require disclosure of
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`details regarding its theory in its infringement contentions lacks merit and should be rejected.
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`CyWee argues that, under Fenner Investments v. Hewlett-Packard, this Court’s Patent
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`Local Rules do not require CyWee to disclose the basis of its induced infringement allegations
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`before the start of expert discovery. Dkt No. 294 at 6–7 (citing Fenner Investments, Ltd. v.
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`Hewlett-Packard Co., No. 6:08-cv-273, 2010 WL 786606, at *2–3 (E.D. Tex. Feb. 26, 2010)). In
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`that case, however, the Court excused the plaintiff’s failure to include in its contentions certain
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`details relating to its inducement theory because the plaintiff had already disclosed its reliance
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`on defendants’ manuals to meet the limitation at issue. Fenner, 2010 WL 786606, at *8–9.
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`Here, CyWee does not rely on any such evidence for any Accused Product to support its
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`induced infringement theory. Instead, as discussed in the preceding section, CyWee relies on a
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`generic description of a standard Android function and Dr. Brown’s speculation regarding how
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`that function could be used by unspecified third-party applications. Such unsupported guesswork
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`does not rise to the level of the conclusive evidence endorsed by Fenner. Id. at *3.
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`III.
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`SAMSUNG HAS BEEN IRREPARABLY PREJUDICED
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`CyWee’s failure to timely disclose its induced infringement theory continues to prejudice
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`Samsung. Another continuance will not cure this prejudice. CyWee waited until serving expert
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`Case 2:17-cv-00140-WCB-RSP Document 315 Filed 02/07/19 Page 6 of 8 PageID #: 16189
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`reports to identify the third-party applications on which it bases its allegations, and it still has not
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`disclosed its basis for alleging that remapCoordinateSystem() practices any limitation of any
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`asserted claim. Samsung cannot be expected to have knowledge of third-party source code, let
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`alone guess how CyWee will allege that third-party source code practices any claim limitations.
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`CyWee’s delay has already prejudiced Samsung. By the time Samsung had any knowledge about
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`CyWee’s induced infringement allegations, inadequate time remained to assess and develop a
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`full and fair defense against those allegations.
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`A continuance would not cure the unfair prejudice to Samsung. Expert discovery has
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`already closed, the deadline for dispositive motions is imminent, and trial is scheduled to begin
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`in less than four months. In the absence of a stay, the parties will likely have fully briefed their
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`dispositive motions and begun substantial trial preparations by the time this motion is decided.
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`At that juncture, a continuance allowing Samsung adequate time to address CyWee’s induced
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`infringement allegations would inevitably require that trial be delayed. In view of the extensions
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`already afforded to CyWee, further delay due to CyWee’s failure to timely and adequately
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`disclose the basis for its induced infringement claims would further prejudice Samsung.
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`IV. CONCLUSION
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`CyWee failed to timely and adequately disclose its induced infringement theory, leaving
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`Samsung with insufficient time to fully analyze and develop defenses to that theory. As a result,
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`Samsung will suffer considerable unfair prejudice if CyWee is now allowed to proceed with its
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`induced infringement claims. Accordingly, Samsung respectfully requests that the Court strike
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`CyWee’s induced infringement allegations.
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`-5-
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`Case 2:17-cv-00140-WCB-RSP Document 315 Filed 02/07/19 Page 7 of 8 PageID #: 16190
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`DATED: February 5, 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
`Ariell Bratton (pro hac vice)
`CA Bar No. 317587
`ariellbratton@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
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`-6-
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`Case 2:17-cv-00140-WCB-RSP Document 315 Filed 02/07/19 Page 8 of 8 PageID #: 16191
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`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 February 5, 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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`-7-
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