Case 2:17-cv-00140-RWS-RSP Document 48 Filed 11/17/17 Page 1 of 6 PageID #: 1230
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
` CASE NO. 2:17-cv-00140-RWS-RSP
`
`
`
`JURY TRIAL DEMANDED
`
`
`CYWEE GROUP LTD.,
`
`
`Plaintiff,
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND
`SAMSUNG ELECTRONICS AMERICA,
`INC.
`
`
`Defendants.
`
`
`PLAINTIFF’S REPLY IN SUPPORT OF CYWEE’S MOTION FOR LEAVE TO
`AMEND ITS INFRINGEMENT CONTENTIONS
`
`
`CyWee1 has shown both diligence and lack of prejudice to Samsung,2 and good cause
`
`
`
`exists to add the newly discovered infringing products. Samsung has failed to demonstrate
`
`that it will suffer any actual prejudice and CyWee’s supplemental contentions should have
`
`no impact on Samsung’s claim construction positions and invalidity contentions. There has
`
`been no change in CyWee’s infringement theories and CyWee contends that the newly-
`
`accused products infringe in precisely the same manner as those previously accused and
`
`charted. Thus, the claim charts for the new products are virtually identical to CyWee’s
`
`original claim charts. Because CyWee’s infringement theory remains unchanged, Samsung
`
`will not have to expend “significant resources analyzing CyWee’s claims and infringement
`
`theories for the four additional products.”3 Accordingly, CyWee’s Motion4 should be
`
`granted.
`
`
`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).
`
`1
`
`

`

`Case 2:17-cv-00140-RWS-RSP Document 48 Filed 11/17/17 Page 2 of 6 PageID #: 1231
`
`I. ARGUMENT
`
`Four factors govern requests to amend infringement contentions: (1) the reason for the
`
`party’s failure to meet the deadline, (2) the importance of the matter that will be excluded, (3)
`
`the potential prejudice to the opposing party, and (4) the availability of a continuance to cure
`
`any prejudice.5 In its Response,6 Samsung argues only two of the four applicable factors,
`
`thereby conceding by omission the remaining two factors (the importance of CyWee’s
`
`supplemental contentions and the availability of a delay to cure any prejudice). As discussed
`
`below, the remaining factors also favor allowing CyWee to amend its infringement
`
`contentions.
`
`A. CyWee has been diligent.
`
`Samsung argues that CyWee was not diligent in its efforts and places great importance on
`
`the fact that CyWee served its supplemental contentions two months after the initial deadline.
`
`However, a party’s diligence is not the sole or primary factor in determining whether good
`
`cause exists.7 Courts have not established rigid timelines for adding products released after
`
`infringement contentions are served, but instead examine whether the party’s delay was
`
`reasonable under the circumstances. For example, in TiVo, Inc. v. Verizon Comm’ns, Inc., cited
`
`by Samsung in its Response, this Court found a 9-month delay in seeking to amend
`
`reasonable.8 This Court concluded that the plaintiff had acted diligently when it filed a motion
`
`to amend in July 2011 to accuse a product that was released in October 2010, after having
`
`
`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.
`
`2
`
`

`

`Case 2:17-cv-00140-RWS-RSP Document 48 Filed 11/17/17 Page 3 of 6 PageID #: 1232
`
`served its infringement contentions in April 2010.9 Samsung mischaracterizes the facts of this
`
`case by stating that “the plaintiff diligently attempted to join an additional product…by
`
`agreement with the defendant immediately after learning that the product had been sold.”10
`
`However, the plaintiff in Tivo inquired about the new product two months after it went on sale,
`
`then attempted to reach an agreement with the defendant an additional five months later.11
`
`In contrast, CyWee served its supplemental claim charts within two months of its original
`
`deadline, at which point the Galaxy J7 was on sale for about two months and the Galaxy S8
`
`Active was released after that. CyWee promptly obtained the additional products, assessed
`
`their functionality, and served its supplemental charts within two months, even though these
`
`products were unavailable in early July.12 Additionally, CyWee sought to amend its
`
`infringement contentions for the Galaxy Note 7, which was specifically accused in CyWee’s
`
`original infringement contentions.13 Samsung’s statement that the Galaxy Note 7 was “not
`
`even listed in CyWee’s contentions”14 simply is not true.
`
`B. Samsung will not be prejudiced.
`
`Samsung argues it would be prejudiced by CyWee’s supplemental contentions because it
`
`would have to “undertake significant additional work” and “expend significant resources
`
`analyzing CyWee’s claims and infringement theories for the four additional products.”15 This
`
`argument lacks any support. First, invalidity has nothing to do with products created after the
`
`patent has issued. Second, Samsung has not shown any change in CyWee’s infringement
`
`
`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.
`
`3
`
`

`

`Case 2:17-cv-00140-RWS-RSP Document 48 Filed 11/17/17 Page 4 of 6 PageID #: 1233
`
`theories. As explained in CyWee’s Motion, the newly-accused products infringe in a similar
`
`manner, the additional claim charts are virtually identical to CyWee’s original claim charts,
`
`and no new infringement theories are asserted.16
`
`Samsung argues that “a number of differences” exist from prior claim charts because the
`
`newly-accused products include “different accelerometers, gyroscopes, and/or compass
`
`sensors . . .”17 Samsung ignores the fact that the relevant characteristics of those components
`
`remain unchanged from those previously accused. More specifically, each accelerometer,
`
`gyroscope, and magnetometer in an accused device is capable of providing 3-axis output.18
`
`This is shown in the following excerpts from both CyWee’s previously-served charts and
`
`supplemental charts, which clearly show that all such components provide 3-axis output (in the
`
`x, y, and z directions).
`
`Samsung Galaxy S7 Edge Chart (Dkt. 45-4
`at 10)
`
`Samsung Galaxy J7 (2017) Chart (Dkt. 43-
`10 at 7)
`
`
`
`
`
`Because CyWee’s infringement theories remain the same as they were in July 2017,
`
`Samsung’s invalidity theories should remain unchanged. In this case, one invalidity theory for
`
`
`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.
`
`4
`
`

`

`Case 2:17-cv-00140-RWS-RSP Document 48 Filed 11/17/17 Page 5 of 6 PageID #: 1234
`
`the first set of claim charts and a different theory for the new products would be absurd.
`
`Nonetheless, even assuming the new products infringe the patents-in-suit in a different manner,
`
`which is not the case here, Samsung admits in its Response that the Galaxy J7 V and the
`
`Galaxy J7 “are variants of the same phone” and that these products are “functionally identical
`
`to other models of the 2017 Galaxy J7 for purposes of this case.”19 Samsung’s own admission
`
`defeats its assertion of having to do any “significant additional work.”
`
`Nor will CyWee’s supplemental contentions affect Samsung’s claim construction positions.
`
`Samsung argues that allowing CyWee to amend its infringement contentions could impact its
`
`claim construction positions. Such hypothetical impact fails to show any actual prejudice
`
`against CyWee’s Motion. Even if such hypothetical impact did show prejudice, Samsung’s
`
`argument has no merit. Claim construction is “decided based on the intrinsic evidence and to a
`
`lesser extent the extrinsic evidence – neither of which depend on the infringement positions or
`
`infringing products.”20 In this case, CyWee’s supplemental contentions will not change the
`
`prior art or the prosecution history, and as such, Samsung will suffer no prejudice in relation to
`
`claim construction.
`
`II. CONCLUSION
`
`For the reasons set forth above and in CyWee’s Motion, there is good cause to grant
`
`CyWee leave to amend its infringement contentions, and CyWee respectfully requests that
`
`the Court grant its Motion.
`
`
`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).
`
`5
`
`

`

`Case 2:17-cv-00140-RWS-RSP Document 48 Filed 11/17/17 Page 6 of 6 PageID #: 1235
`
`Date: November 17, 2017
`
`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
`
`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.
`
`
`
`CERTIFICATE OF SERVICE
`
`
`
`The undersigned certifies that all counsel of record who are deemed to have consented
`
`to electronic service are being served with a copy of this document via the Court’s CM/ECF
`
`system per Local Rule CV-5(a)(3) on November 17, 2017.
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Christopher L. Evans
`Christopher L. Evans
`
`
`
`
`
`
`
`
`
`
`
`