`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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` CASE NO. 2:17-cv-00140-RWS-RSP
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`JURY TRIAL DEMANDED
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`CYWEE GROUP LTD.,
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`Plaintiff,
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`SAMSUNG ELECTRONICS CO., LTD.
`AND
`SAMSUNG ELECTRONICS AMERICA,
`INC.
`
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`Defendants.
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`PLAINTIFF’S REPLY IN SUPPORT OF CYWEE’S MOTION FOR LEAVE TO
`AMEND ITS INFRINGEMENT CONTENTIONS
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`CyWee1 has shown both diligence and lack of prejudice to Samsung,2 and good cause
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`exists to add the newly discovered infringing products. Samsung has failed to demonstrate
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`that it will suffer any actual prejudice and CyWee’s supplemental contentions should have
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`no impact on Samsung’s claim construction positions and invalidity contentions. There has
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`been no change in CyWee’s infringement theories and CyWee contends that the newly-
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`accused products infringe in precisely the same manner as those previously accused and
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`charted. Thus, the claim charts for the new products are virtually identical to CyWee’s
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`original claim charts. Because CyWee’s infringement theory remains unchanged, Samsung
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`will not have to expend “significant resources analyzing CyWee’s claims and infringement
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`theories for the four additional products.”3 Accordingly, CyWee’s Motion4 should be
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`granted.
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`1 “CyWee” means Plaintiff CyWee Group Ltd.
`2 “Samsung” means Defendants Samsung Electronics Co. Ltd. and Samsung Electronics America, Inc.
`3 See Dkt. 47 at 7.
`4 “Motion” means CyWee’s Motion for Leave to Amend Its Infringement Contentions (Dkt. 44).
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`1
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`Case 2:17-cv-00140-RWS-RSP Document 48 Filed 11/17/17 Page 2 of 6 PageID #: 1231
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`I. ARGUMENT
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`Four factors govern requests to amend infringement contentions: (1) the reason for the
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`party’s failure to meet the deadline, (2) the importance of the matter that will be excluded, (3)
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`the potential prejudice to the opposing party, and (4) the availability of a continuance to cure
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`any prejudice.5 In its Response,6 Samsung argues only two of the four applicable factors,
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`thereby conceding by omission the remaining two factors (the importance of CyWee’s
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`supplemental contentions and the availability of a delay to cure any prejudice). As discussed
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`below, the remaining factors also favor allowing CyWee to amend its infringement
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`contentions.
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`A. CyWee has been diligent.
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`Samsung argues that CyWee was not diligent in its efforts and places great importance on
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`the fact that CyWee served its supplemental contentions two months after the initial deadline.
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`However, a party’s diligence is not the sole or primary factor in determining whether good
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`cause exists.7 Courts have not established rigid timelines for adding products released after
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`infringement contentions are served, but instead examine whether the party’s delay was
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`reasonable under the circumstances. For example, in TiVo, Inc. v. Verizon Comm’ns, Inc., cited
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`by Samsung in its Response, this Court found a 9-month delay in seeking to amend
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`reasonable.8 This Court concluded that the plaintiff had acted diligently when it filed a motion
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`to amend in July 2011 to accuse a product that was released in October 2010, after having
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`5 TiVo, Inc. v. Verizon Comm’ns, Inc., No. 2:09–CV–257–JRG, 2012 WL 2036313, at *1 (E.D. Tex. Jun. 6, 2012).
`6 “Response” means Samsung’s Opposition to CyWee’s Motion (Dkt. 47).
`7 See, e.g., McLean-Fogg Co. v. Eaton Corp., No. 2:07-cv-472, 2008 WL 4601476, *3 (E.D. Tex.) (good cause found
`although the patentee “could have been more diligent in pursuing its claims”); Arbitron, Inc. v. Int’l Demographics
`Inc., No. 2:06-CV-434, 2008 WL 4755761, at *1 (E.D. Tex. Oct. 29, 2008) (court “does not agree that diligence is
`the sole or primary factor to be considered in deciding” whether good cause has been shown).
`8 TiVo, Inc., 2012 WL 2036313, at *2.
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`2
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`Case 2:17-cv-00140-RWS-RSP Document 48 Filed 11/17/17 Page 3 of 6 PageID #: 1232
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`served its infringement contentions in April 2010.9 Samsung mischaracterizes the facts of this
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`case by stating that “the plaintiff diligently attempted to join an additional product…by
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`agreement with the defendant immediately after learning that the product had been sold.”10
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`However, the plaintiff in Tivo inquired about the new product two months after it went on sale,
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`then attempted to reach an agreement with the defendant an additional five months later.11
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`In contrast, CyWee served its supplemental claim charts within two months of its original
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`deadline, at which point the Galaxy J7 was on sale for about two months and the Galaxy S8
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`Active was released after that. CyWee promptly obtained the additional products, assessed
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`their functionality, and served its supplemental charts within two months, even though these
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`products were unavailable in early July.12 Additionally, CyWee sought to amend its
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`infringement contentions for the Galaxy Note 7, which was specifically accused in CyWee’s
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`original infringement contentions.13 Samsung’s statement that the Galaxy Note 7 was “not
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`even listed in CyWee’s contentions”14 simply is not true.
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`B. Samsung will not be prejudiced.
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`Samsung argues it would be prejudiced by CyWee’s supplemental contentions because it
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`would have to “undertake significant additional work” and “expend significant resources
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`analyzing CyWee’s claims and infringement theories for the four additional products.”15 This
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`argument lacks any support. First, invalidity has nothing to do with products created after the
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`patent has issued. Second, Samsung has not shown any change in CyWee’s infringement
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`9 Id.
`10 Dkt. No. 47 at 5.
`11 TiVo, Inc., 2012 WL 2036313, at *1.
`12 Dkt. No. 44 at 3.
`13 Dkt. No. 43-2 at 2.
`14 Dkt. No. 47 at 1.
`15 Id. at 7.
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`3
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`Case 2:17-cv-00140-RWS-RSP Document 48 Filed 11/17/17 Page 4 of 6 PageID #: 1233
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`theories. As explained in CyWee’s Motion, the newly-accused products infringe in a similar
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`manner, the additional claim charts are virtually identical to CyWee’s original claim charts,
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`and no new infringement theories are asserted.16
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`Samsung argues that “a number of differences” exist from prior claim charts because the
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`newly-accused products include “different accelerometers, gyroscopes, and/or compass
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`sensors . . .”17 Samsung ignores the fact that the relevant characteristics of those components
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`remain unchanged from those previously accused. More specifically, each accelerometer,
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`gyroscope, and magnetometer in an accused device is capable of providing 3-axis output.18
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`This is shown in the following excerpts from both CyWee’s previously-served charts and
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`supplemental charts, which clearly show that all such components provide 3-axis output (in the
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`x, y, and z directions).
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`Samsung Galaxy S7 Edge Chart (Dkt. 45-4
`at 10)
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`Samsung Galaxy J7 (2017) Chart (Dkt. 43-
`10 at 7)
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`Because CyWee’s infringement theories remain the same as they were in July 2017,
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`Samsung’s invalidity theories should remain unchanged. In this case, one invalidity theory for
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`16 Dkt. No. 44 at 4-5.
`17 Dkt. No. 47 at 6-7.
`18 All asserted claims of the ’438 patent require a “six-axis motion sensor”, including an accelerometer and
`“rotation sensor” or gyroscope. The asserted claims of the ’978 patent additionally require a 3-axis magnetometer.
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`4
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`Case 2:17-cv-00140-RWS-RSP Document 48 Filed 11/17/17 Page 5 of 6 PageID #: 1234
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`the first set of claim charts and a different theory for the new products would be absurd.
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`Nonetheless, even assuming the new products infringe the patents-in-suit in a different manner,
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`which is not the case here, Samsung admits in its Response that the Galaxy J7 V and the
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`Galaxy J7 “are variants of the same phone” and that these products are “functionally identical
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`to other models of the 2017 Galaxy J7 for purposes of this case.”19 Samsung’s own admission
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`defeats its assertion of having to do any “significant additional work.”
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`Nor will CyWee’s supplemental contentions affect Samsung’s claim construction positions.
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`Samsung argues that allowing CyWee to amend its infringement contentions could impact its
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`claim construction positions. Such hypothetical impact fails to show any actual prejudice
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`against CyWee’s Motion. Even if such hypothetical impact did show prejudice, Samsung’s
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`argument has no merit. Claim construction is “decided based on the intrinsic evidence and to a
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`lesser extent the extrinsic evidence – neither of which depend on the infringement positions or
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`infringing products.”20 In this case, CyWee’s supplemental contentions will not change the
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`prior art or the prosecution history, and as such, Samsung will suffer no prejudice in relation to
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`claim construction.
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`II. CONCLUSION
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`For the reasons set forth above and in CyWee’s Motion, there is good cause to grant
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`CyWee leave to amend its infringement contentions, and CyWee respectfully requests that
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`the Court grant its Motion.
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`19 Dkt. 47 at 4.
`20 See e.g. Mondis Tech., Ltd. v. LG Elecs., Inc., No. 2:07-CV-565-TJW-CE, 2011 WL 2149925, at *3 (E.D. Tex. May
`5, 2011); EON Corp. IP Holdings, LLC v. Sensus USA Inc., 741 F. Supp. 2d 783, 796 (E.D. Tex. 2010) (“A claim is
`construed in light of the claim language, the other claims, the prior art, the prosecution history, and the
`specification, not in light of the accused device.”) (emphasis added).
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`5
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`Case 2:17-cv-00140-RWS-RSP Document 48 Filed 11/17/17 Page 6 of 6 PageID #: 1235
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`Date: November 17, 2017
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`Respectfully submitted,
`
`
`
`
`
`/s/ Christopher L. Evans
`Michael W. Shore
`Texas State Bar No. 18294915
`mshore@shorechan.com
`Alfonso Garcia Chan
`Texas State Bar No. 24012408
`achan@shorechan.com
`Christopher L. Evans
`Texas State Bar No. 24058901
`cevans@shorechan.com
`Ari B. Rafilson
`Texas State Bar No. 24060456
`arafilson@shorechan.com
`William D. Ellerman
`Texas State Bar No. 24007151
`wellerman@shorechan.com
`Paul T. Beeler
`Texas State Bar No. 24095432
`pbeeler@shorechan.com
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`SHORE CHAN DEPUMPO LLP
`901 Main Street, Suite 3300
`Dallas, Texas 75202
`Tel: (214) 593-9110
`Fax: (214) 593-9111
`
`Attorneys for Plaintiff
`CyWee Group Ltd.
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that all counsel of record who are deemed to have consented
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`to electronic service are being served with a copy of this document via the Court’s CM/ECF
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`system per Local Rule CV-5(a)(3) on November 17, 2017.
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`/s/ Christopher L. Evans
`Christopher L. Evans
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