`Case 2:17-cv—00140-RWS—RSP Document 43-5 Filed 10/25/17 Page 1 of 3 PageID #: 886
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`EXHIBIT D
`EXHIBIT D
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`Case 2:17-cv-00140-RWS-RSP Document 43-5 Filed 10/25/17 Page 2 of 3 PageID #: 887
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`1(858) 458-3052
`jeffreycomeau@paulhastings.com
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`
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`August 18, 2017
`
`VIA E-MAIL
`
`Ari Rafilson
`Shore Chan DePumpo LLP
`Bank of America Plaza
`901 Main Street, Suite 3300
`Dallas, Texas 75202
`arafilson@shorechan.com
`
`Re: CyWee Group Ltd. v. Samsung Electronics Co., Ltd. et al., No. 2:17-cv-00140-RWS-RSP
`(E.D. Tex.): Infringement Contention Deficiencies
`
`Dear Ari:
`
`We write regarding deficiencies in CyWee’s P.R. 3-1 Infringement Contentions. This letter is not
`intended to be an exhaustive list of the deficiencies in CyWee’s contentions, but rather raises
`only certain points that are obvious upon our initial review.
`I.
`CyWee cannot accuse products not specifically identified in its contentions
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`CyWee’s contentions do not comply with P.R. 3-1(b), which requires a plaintiff to identify every
`accused instrumentality as specifically as possible. In contravention of this rule, while CyWee’s
`contentions identify a limited number of accused products by name, the contentions also appear
`to broadly accuse any Samsung phone and/or tablet running any version of Android OS and
`also including certain sensor components.
`This is improper. CyWee cannot rely on generic “functionality” language to sweep in additional
`products that are not identified specifically in its contentions. See, e.g., Tivo Inc. v. Samsung
`Elecs. Co., No. 2:15-cv-1503-JRG, 2016 U.S. Dist. LEXIS 96299, at *10–11 (E.D. Tex. July 22,
`2016).
`Please confirm by August 23rd that CyWee is not accusing any Samsung product apart from
`those specifically identified by name in CyWee’s contentions.
`II.
`CyWee has failed to provide a claim chart for each Accused Instrumentality
`
`P.R. 3-1(c) requires that CyWee provide: “[a] chart identifying specifically where each element
`of each asserted claim is found within each Accused Instrumentality[.]” CyWee’s contentions
`accuse the Samsung Galaxy Note 7 of infringing both the ’438 and ’978 Patents. However,
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`Case 2:17-cv-00140-RWS-RSP Document 43-5 Filed 10/25/17 Page 3 of 3 PageID #: 888
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`August 18, 2017
`Page 2
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`CyWee has not provided any claim charts mapping the asserted claims of the ’438 and ’978
`Patents against that product.
`Please confirm by August 23rd that CyWee will withdraw its infringement allegations against the
`Samsung Galaxy Note 7.
`III.
`CyWee has failed to adequately allege infringement under the doctrine of
`equivalents
`
`CyWee’s contentions also do not comply with P.R. 3-1(e), which requires a plaintiff to identify:
`“[w]hether each element of each asserted claim is claimed to be literally present or present
`under the doctrine of equivalents in the Accused Instrumentality[.]” In contrast, CyWee’s
`contentions merely provide a blanket statement that “CyWee contends that each asserted claim
`is literally infringed” but “[i]n the alternative, CyWee contends that any asserted claim not found
`to be literally infringed is infringed under the doctrine of equivalents.” CyWee’s boilerplate
`attempt to preserve a DOE argument is improper. See, e.g., Eolas Techs. Inc. v. Amazon.com,
`Inc., No. 6:15-cv-01038, 2016 U.S. Dist. LEXIS 181948, at *12 (E.D. Tex. Dec. 5, 2016).
`Please confirm by August 23rd that CyWee will withdraw its DOE allegations.
`If CyWee does not agree to withdraw the allegations detailed above, we reserve the right to
`move to strike CyWee’s contentions in whole or in part.
`Very truly yours,
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`
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`Jeffrey D. Comeau
`for PAUL HASTINGS LLP
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