Case 2:17-cv-00140-RWS-RSP Document 45 Filed 11/02/17 Page 1 of 8 PageID #: 1081
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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 CYWEE GROUP LTD.’S UNTIMELY INFRINGEMENT CHARTS
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`CyWee’s opposition to Samsung’s motion to strike ignores one simple fact: three of the
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`four products CyWee is now attempting to add to this case were publicly available before the
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`July 12, 2017 due date of its contentions. CyWee argues that the original charted products were
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`exemplars of the relevant products but fails to cite any authority supporting its position that a
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`party may be excused from charting every accused product based only on an unsupported
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`assertion that its claim charts are exemplary of other products. Indeed, the relevant products were
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`not even listed in CyWee’s infringement contentions.
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`There is no good cause here, and there is considerable prejudice. Were the Court to
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`permit CyWee to amend its infringement contentions at this stage, the burden imposed on
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`Samsung would be considerable. Samsung served its invalidity contentions more than a month
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`ago based on CyWee’s positions set forth in its infringement contentions, and the claim
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`construction process starts in just over two weeks. If CyWee is permitted to amend, Samsung
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`would have to analyze four additional products and potentially alter its invalidity and other
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`Case 2:17-cv-00140-RWS-RSP Document 45 Filed 11/02/17 Page 2 of 8 PageID #: 1082
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`substantive positions based on that analysis. Moreover, CyWee still has not provided any reason
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`why it failed to seek leave of Court in the first place, as required by Patent L.R. 3-6. Thus,
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`Samsung respectfully requests that the Court grant its motion to strike and deny CyWee leave to
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`amend its infringement contentions.
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`I.
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`CYWEE HAS NOT SHOWN GOOD CAUSE TO AMEND ITS INFRINGEMENT
`CONTENTIONS
`A.
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`CyWee Has Not Explained Why It Failed to Timely Accuse the Galaxy J7V,
`Galaxy J7 (2017), Galaxy Note 7, or the Galaxy S8 Active
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`CyWee has not provided any factual basis to support its argument that it had good cause
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`to amend its infringement contentions. Rather than provide any reason why it did not timely
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`accuse the four products it is now attempting to add to this case, CyWee relies on misleading
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`information for the Galaxy J7V and Galaxy J7 (2017), and misrepresentations of Samsung’s
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`counsel’s statements.
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`Relying on a single website reference for each product, CyWee represents that the
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`“Galaxy J7 V” and the “Galaxy J7 (2017)” were released in March and July of 2017,
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`respectively, and that it was “unaware” of the Galaxy J7 V when it served its infringement
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`contentions. (Opp. at 2.) Putting aside CyWee’s failure to show why it was unaware of a publicly
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`available product, the “Galaxy J7 V” and the “Galaxy J7 (2017)” are variants of the same
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`phone—the 2017 model of the Galaxy J7 (“the 2017 Galaxy J7”). (Declaration of S. Moseley
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`(“Moseley Decl.”), Exs. G–H.) Had CyWee adequately investigated these products, it would
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`have learned that the “V” designation was given to the model of the 2017 Galaxy J7 sold by
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`Verizon Wireless, which, as even CyWee’s claim charts confirm, is functionally identical to
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`other models of the 2017 Galaxy J7 for purposes of this case. (See, e.g., Opp., Exs. I–L.) The
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`Galaxy J7 V was released in March of 2017, well before the due date of CyWee’s infringement
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`Case 2:17-cv-00140-RWS-RSP Document 45 Filed 11/02/17 Page 3 of 8 PageID #: 1083
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`contentions. Accordingly, CyWee does not have any excuse for failing to include the 2017
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`Galaxy J7 in its original infringement contentions.
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`CyWee claims that a “worldwide recall” of the Galaxy Note 7 hampered its attempts to
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`obtain a sample of that product. However, CyWee fails to explain why it needed a physical
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`sample of the Galaxy Note 7 to prepare its claim charts, given that its charts for that product
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`contain only information from public websites and cross-references to its existing charts for the
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`Galaxy S7 Edge. (Opp., Exs. G–H.)
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`CyWee next incorrectly states that Samsung’s counsel requested claim charts for the
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`Galaxy Note 7, offering only its own self-serving correspondence as support. As described in
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`Samsung’s motion to strike, Samsung promptly notified CyWee that its infringement contentions
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`were deficient because, among other things, they failed to include a chart for the Galaxy Note 7.
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`(Mot. at 2.) Samsung also refused to agree to CyWee’s untimely attempt to amend its
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`infringement contentions and notified CyWee that it must request leave from the Court and
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`demonstrate good cause to amend, as required under the rules. (Id.) Indeed, in the
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`correspondence immediately preceding CyWee’s, Samsung unambiguously stated that it
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`“disputes that the Note 7 . . . [is a] properly accused product[]” and that it “will oppose any
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`attempt by CyWee to amend its contentions to include new charts or name new products, absent
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`a showing of good cause sufficient under the local patent rules.” (Mot., Ex. D.) No other
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`correspondence indicates otherwise and Samsung never made any contrary statement during any
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`discussion between the parties. (Moseley Decl. ¶ 4; see also Mot., Exs. B–F, Opp., Exs. E–F.) It
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`also makes no sense that Samsung would challenge CyWee’s attempt to untimely amend its
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`contentions only to accept new claim charts at a later meet and confer, without any agreement to
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`mitigate the burden imposed on Samsung by the late amendment.
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`Case 2:17-cv-00140-RWS-RSP Document 45 Filed 11/02/17 Page 4 of 8 PageID #: 1084
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`Finally, CyWee has not explained why it waited more than two months to attempt to
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`amend its infringement contentions to add the Galaxy S8 Active. (See Opp. at 4.) As noted in the
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`website cited by CyWee, the Galaxy S8 Active was released on or about August 11, 2017, but
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`CyWee did not move for leave to amend until October 27, 2017. (Declaration of Chris Evans in
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`support of CyWee’s Opposition (“Evans Decl.”) ¶ 6; Dkt. No. 44.) In similar circumstances, this
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`Court has allowed a plaintiff to amend its infringement contentions to add new products only
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`when it has been diligent in doing so. For example, in TiVo, Inc. v. Verizon Communications,
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`Inc., No. 2:09–CV–257–JRG, 2012 WL 2036313 (E.D. Tex. Jun. 6, 2012), the plaintiff diligently
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`attempted to join an additional product to the lawsuit by agreement with the defendant
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`immediately after learning that the product had been sold to the public. See id. at *2. In contrast,
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`CyWee waited over a month before serving Samsung with a claim chart attempting to add the
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`Samsung Galaxy S8 Active to this case and waited over two months before filing a motion for
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`leave with the Court.
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`CyWee lacks good cause to amend its infringement contentions to include any of the four
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`products that were not originally accused, and the Court should disallow CyWee’s attempt to do
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`so.
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`B.
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`CyWee Has Not Provided Any Case Law Supporting Its Use of
`Representative Claim Charts
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`CyWee also fails to provide any authority for its position that it should be allowed to use
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`its existing claim charts as “representative” claim charts for the new products it is adding without
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`any explanation of how the products are allegedly identical. In UltimatePointer, LLC v. Nintendo
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`Co., No. 6:11-CV-496, 2013 WL 12140173 (E.D. Tex. May 28, 2013), the only case cited by
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`CyWee that discusses this issue, the Court found such an approach inappropriate. Id. at *3.
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`Specifically, the Court noted that “[i]t is possible for a plaintiff to use a single chart for multiple
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`-4-
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`Case 2:17-cv-00140-RWS-RSP Document 45 Filed 11/02/17 Page 5 of 8 PageID #: 1085
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`products, if separate charts would be identical for each product.” Id. (citing Juxtacomm Techs.,
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`Inc. v. Ascential Software Corp., 548 F. Supp. 2d 379, 381 (E.D. Tex. 2008)). The Court also
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`made clear that “broad conclusory allegations that the products are similar do not allow Plaintiffs
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`to circumvent the Local Rules.” Id. (citing Global Sessions LP v. Travelocity.com LP, No. 6:10-
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`cv-671, 2012 WL 1903903, at *4 (E.D. Tex. May 25, 2012)). Accordingly, the Court found the
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`use of exemplary charts improper because the plaintiff did not “provide an explanation of the
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`technical and functional identity of the products represented [by the exemplary charts].” Id.
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`Here, a number of differences exist amongst the claim charts CyWee served with its
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`original infringement contentions. For example, those claim charts accuse a number of different
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`accelerometers, gyroscopes, and/or compass sensors of meeting limitations of the asserted claims
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`because the charted products use different models of these components. (Moseley Decl., Exs. I–
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`K.) None of the claim charts served with CyWee’s original infringement contentions has any
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`information that would allow Samsung to determine which, if any, of them represent CyWee’s
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`new contentions against the four new products it is now attempting to add. (See, e.g., id.) Instead,
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`despite clear evidence in its own claim charts showing that the accused products differ for
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`purposes relevant to this case, CyWee asserts that each of its claim charts is somehow
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`“exemplary” of its accusations against some untold number of other products without any further
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`explanation. (Id.) CyWee has not complied with its obligation to provide “chart[s] identifying
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`specifically where each element of each asserted claim is found within each Accused
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`Instrumentality . . . .” P.R. 3-1(c).
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`Given its inability to show good cause for leave, CyWee should not be allowed to
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`belatedly amend its infringement contentions to add the four products at issue.
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`-5-
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`Case 2:17-cv-00140-RWS-RSP Document 45 Filed 11/02/17 Page 6 of 8 PageID #: 1086
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`C.
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`The Burden Imposed on Samsung if the Court Were to Permit CyWee to
`Amend Its Infringement Contentions Is Significant and Would Cause Unfair
`Prejudice
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`Permitting CyWee to amend its infringement contentions now will impose a significant
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`burden on and cause unfair prejudice to Samsung. CyWee’s assertion that its original claim
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`charts provided Samsung adequate notice because no new claims or infringement theories were
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`added after the original invalidity contention deadline misses the mark and is unsupported.
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`Samsung served its invalidity contentions more than a month ago based on CyWee’s
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`representations in its infringement contentions. If CyWee were allowed to amend, Samsung
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`would have to expend significant resources analyzing CyWee’s claims and infringement theories
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`for the four newly-added products. Samsung would also potentially have to develop additional
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`non-infringement and invalidity positions related to those products. In addition, this analysis
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`could impact Samsung’s claim construction positions, and the parties are due to propose claim
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`terms to be construed in just over two weeks, leaving Samsung with little time to prepare its
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`positions.
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`Given the unfair prejudice to Samsung, in addition to CyWee’s failure to show good
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`cause, CyWee should not be allowed to amend its infringement contentions to add the four
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`products at issue.
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`II.
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`CONCLUSION
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`CyWee has failed to show the requisite good cause to amend its infringement contentions
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`to add products that were released long ago, most before CyWee served its original infringement
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`contentions. Accordingly, Samsung respectfully requests that the Court strike CyWee’s
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`supplemental claim charts and associated contentions for the Galaxy Note 7, Galaxy J7, Galaxy
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`J7 V, and Galaxy S8 Active.
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`-6-
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`Case 2:17-cv-00140-RWS-RSP Document 45 Filed 11/02/17 Page 7 of 8 PageID #: 1087
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`DATED: November 2, 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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`-7-
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`Case 2:17-cv-00140-RWS-RSP Document 45 Filed 11/02/17 Page 8 of 8 PageID #: 1088
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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 November 2, 2017. 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).
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-8-
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