Case 2:17-cv-00140-RWS-RSP Document 41 Filed 10/12/17 Page 1 of 7 PageID #: 765
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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 MOTION TO STRIKE PLAINTIFF CYWEE
`GROUP LTD.’S UNTIMELY INFRINGEMENT CHARTS
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`Two months after its infringement contentions were due under the Patent Local Rules,
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`CyWee served supplemental claim charts attempting to accuse for the first time four additional
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`Samsung products. CyWee did not seek leave of Court to amend its contentions, however, in
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`violation of P.R. 3-6. Indeed, CyWee has no good cause to amend. Three of the newly accused
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`products were released before the deadline for CyWee’s contentions. And, for the one product
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`released after the deadline, CyWee has refused to provide any reason for why it waited more
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`than a month after the product’s release to provide any indication of its intent to also accuse that
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`product. Accordingly, CyWee’s supplemental claim charts and associated contentions for the
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`four additional Samsung products should be stricken.
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`-1-
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`Case 2:17-cv-00140-RWS-RSP Document 41 Filed 10/12/17 Page 2 of 7 PageID #: 766
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`I.
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`BACKGROUND
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`CyWee served its infringement contentions on the July 12, 2017 due date, naming 15
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`Samsung products.1 (Decl. of J. Comeau (“Comeau Decl.”) ¶ 2; Ex. A at 2.) Along with the
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`contentions, CyWee provided claim charts for 14 of these products—all except the Galaxy Note
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`7—for the asserted claims from both patents-in-suit. (Comeau Decl. ¶ 3.) The contentions state
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`that “[e]ach [of the produced infringement contention charts] is an exemplar of how all Samsung
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`devices manufactured using the same or similar technology infringes each asserted claim.” (Ex.
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`A at 3.) However, the contentions do not name any other specific products, let alone provide
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`support for how any of the charts allegedly represent functionalities of any other specific
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`products. (See id.)
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`Samsung promptly notified CyWee that its infringement contentions were deficient
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`because, among other things, they failed to include a chart for the Galaxy Note 7. (Ex. B.)
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`CyWee responded that Samsung’s letter as a “waste of time,” claiming that “[i]f every Android
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`device infringes the same claims the same way, as here, there is no need to repeat the same chart
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`over and over.” (Ex. C.) Subsequently, however, during a meet and confer on August 28, 2017,
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`CyWee changed positions and offered to serve additional claim charts for the Galaxy Note 7 and
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`three previously unidentified products—the Galaxy J7, Galaxy J7 V, and Galaxy S8 Active. (See
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`Ex. D.) CyWee also offered to allow Samsung to amend its invalidity contentions in response to
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`those proposed amendments. (See Ex. E.)
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`Samsung replied that it would not agree to CyWee’s untimely attempt to amend its
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`contentions, unless CyWee properly requested leave from the Court and demonstrated good
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`cause to amend, as required under the rules. (Ex. E.) Nonetheless, CyWee served the additional
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`1 Samsung’s Galaxy S6, Galaxy S6 Edge, Galaxy S6 Edge+, Galaxy S6 Active, Galaxy S7,
`Galaxy S7 Edge, Galaxy S7 Active, Galaxy Note 5, Galaxy Tab S2 8.0, Galaxy Tab S2 9.7,
`Galaxy Note 7, Galaxy Tab S3 9.7, Galaxy J3 Emerge, Galaxy S8, and Galaxy S8+.
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`-2-
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`Case 2:17-cv-00140-RWS-RSP Document 41 Filed 10/12/17 Page 3 of 7 PageID #: 767
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`claim charts on September 18, 2017—more than two months after its contentions were due.
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`(Comeau Decl. ¶ 8.) CyWee did not request leave of Court to do so and still has not provided any
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`reason that would support a finding of good cause for its untimely amendments. (Id. ¶ 9.) After
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`Samsung again informed CyWee that it had violated the rules, CyWee reverted back to its earlier
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`unsupported position that the products charted with its original contentions are somehow
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`representative of the additional products it is now attempting to include in the case. (See Ex. F.)
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`II.
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`ARGUMENT
`A.
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`CyWee’s Infringement Contentions Do Not Properly Accuse the Galaxy Note
`7, Galaxy J7, Galaxy J7 V, and Galaxy S8 Active
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`“The Patent Rules demonstrate high expectations as to plaintiffs’ preparedness before
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`bringing suit, requiring plaintiffs to disclose their preliminary infringement contentions before
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`discovery has even begun.” Am. Video Graphics, L.P. v. Elec. Arts, Inc., 359 F. Supp. 2d 558,
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`560 (E.D. Tex. 2005). “Plaintiffs are expected to rigorously analyze all publicly available
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`information before bringing suit and must explain with great detail their theories of
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`infringement.” Connectel, LLC v. Cisco Sys., Inc., 391 F. Supp. 2d 526, 528 (E.D. Tex. 2005).
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`Patent Local Rule 3-1(b) requires a party asserting infringement to identify “[s]eparately
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`for each asserted claim, . . . each accused . . . product . . . of which the party is aware.” It further
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`requires that identification of the accused product be “as specific as possible” and that each
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`accused product be identified by “name or model number, if known.” Id. Further, the party
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`asserting infringement must provide “chart[s] identifying specifically where each element of
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`each asserted claim is found within each [accused product] . . . .” P.R. 3-1(c).
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`In violation of these rules, CyWee failed to even identify the Galaxy J7 and Galaxy J7 V
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`in its infringement contentions, and did not provide charts for those two products or the Galaxy
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`Note 7, even though all three products had already been released. Further, CyWee made no effort
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`-3-
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`Case 2:17-cv-00140-RWS-RSP Document 41 Filed 10/12/17 Page 4 of 7 PageID #: 768
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`to timely amend its contentions to properly accuse the Galaxy S8 Active in compliance with the
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`rules, even though that product was released on August 11, 2017—more than one month before
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`CyWee improperly served its additional claim charts.
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`Nonetheless, CyWee insists that by identifying the charted products as “[e]xemplars” in
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`its contentions, it has excused itself from timely complying with its obligations under the rules.
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`That is not the law. If permitted, such an approach would effectively allow CyWee to unilaterally
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`accuse additional products without end. The Court should strike CyWee’s supplemental claim
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`charts and associated contentions for these four additional Samsung products.
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`B.
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`CyWee Cannot Show Good Cause to Amend Its Infringement Contentions
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`To amend its infringement contentions, CyWee is required to request and obtain leave
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`from the Court. P.R. 3-6(b). Such a request for leave must be supported by a showing that
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`“despite its exercise of diligence, [the party requesting leave] cannot reasonably meet the
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`scheduling deadlines.” Imperium IP Holdings (Cayman), Ltd. v. Samsung Elecs. Co., No. 4:14-
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`CV-371, 2016 U.S. Dist. LEXIS 41762, at *4 (E.D. Tex. Mar. 30, 2016) (citing Garmin S & W
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`Enters., L.L.C. v. Southtrust Bank of Ala., 315 F.3d 533, 535 (5th Cir. 2003)).
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`In assessing a party’s request for leave to amend, courts consider: “(1) the reason for the
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`delay and whether the party has been diligent; (2) the importance of what the court is excluding
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`and the availability of lesser sanctions; (3) potential prejudice in allowing the amendment; and
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`(4) the availability of a continuance to cure such prejudice.” Id. (citing Motion Games, LLC v.
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`Nintendo Co., Ltd., No. 6:12-cv-878-RWS-JDL, 2015 U.S. Dist. LEXIS 50511, at *2 (E.D. Tex.
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`Apr. 16, 2015)).
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`Here, CyWee never filed a motion for leave and never even provided Samsung with its
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`positions for any of the above factors. Namely, CyWee did not give any reason for its delay in
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`serving claim charts for additional products more than three months late and has not made any
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`-4-
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`Case 2:17-cv-00140-RWS-RSP Document 41 Filed 10/12/17 Page 5 of 7 PageID #: 769
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`showing that it was diligent in preparing the charts. Given that three of the products were already
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`on sale as of the July 12, 2017 due date for CyWee’s infringement contentions and the other was
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`released more than one month before CyWee improperly attempted to amend it contentions,
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`CyWee cannot make any showing of diligence.
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`CyWee also has not proposed any means by which the prejudice imposed on Samsung by
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`this delay could be avoided. Indeed, Samsung has now been deprived of a significant amount of
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`time that could have been used to develop its non-infringement positions for the four additional
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`products. Imperium IP Holdings, 2016 U.S. Dist. LEXIS 41762, at *6–7 (noting that “[w]hile
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`Plaintiff may be able to assert extremely similar infringement theories to those already proposed,
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`Defendants’ non-infringement positions may be very different from its previous theories as it is
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`uncertain that the [newly-accused product] functions in the same way as other accused
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`products”). To effectively address arguments relating to the added products, Samsung will have
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`to gather relevant documents and analyze the functionality of the relevant features of the added
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`products for both asserted patents—both time intensive tasks, given the sophistication of the
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`technical subject matter in this case and potential implication of third party suppliers. Indeed,
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`fewer than two months now remain before the parties’ Patent Local Rule 4-1 exchange of
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`proposed claim terms, making a thorough review of the necessary materials in advance of
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`formulating claim construction positions very difficult. Accordingly, CyWee should not be
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`allowed to amend its contentions at this time, and certainly not without filing a motion
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`demonstrating good cause to amend as the rules require.
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`III. CONCLUSION
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`CyWee’s infringement contentions do not comply with the Patent Local Rules for any of
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`the four additional products named in its recently-served infringement contention claim charts.
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`Given these failures, along with CyWee’s failure to obtain leave to amend (and lack of good
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`-5-
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`Case 2:17-cv-00140-RWS-RSP Document 41 Filed 10/12/17 Page 6 of 7 PageID #: 770
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`cause to do so), Samsung respectfully requests that the Court strike CyWee’s supplemental claim
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`charts and associated contentions for the Galaxy Note 7, Galaxy J7, Galaxy J7 V, and Galaxy S8
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`Active.
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`DATED: October 12, 2017
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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
`
`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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`-6-
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`Case 2:17-cv-00140-RWS-RSP Document 41 Filed 10/12/17 Page 7 of 7 PageID #: 771
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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. As of this date, all counsel of
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`record had consented to electronic service and are being served with a copy of this document
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`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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`-7-
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