Case 2:17-cv-00140-RWS-RSP Document 62 Filed 01/24/18 Page 1 of 6 PageID #: 1486
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CYWEE GROUP LTD.,
`
`Plaintiff,
`
`
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`ORDER
`
`No. 2:17-CV -00140-RWS-RSP
`
`In its Motion to Compel Interrogatory Responses [Dkt. # 49], CyWee Group Ltd.
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`contends Defendants have not fully answered its Interrogatory Nos. 7, 8, 10, and 19.
`
`CyWee asks the Court to compel Defendants to do so.
`
`Interrogatory No. 7
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`In this interrogatory, CyWee asks Defendants to
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`Identify the Person or people that You believe would have participated in the
`Hypothetical Negotiation on Your behalf. If more than one Person, also Iden-
`tify the Person who would have been the decisionmaker.
`
`Pl.’s First Set of Interrogs. to Samsung [Dkt. # 49-1]. Defendants responded, “The Licens-
`
`ing Team within Samsung Electronics Co., Ltd., would have negotiated the hypothetical
`
`license.” Defs.’ Supp. Objs. & Resps. [Dkt. # 49-2] at 23. CyWee argues Defendants should
`
`identify all individuals on the Licensing Team from 2010 to the present “because it will
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`1 / 6
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CYWEE GROUP LTD.,
`
`Plaintiff,
`
`
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`ORDER
`
`No. 2:17-CV -00140-RWS-RSP
`
`In its Motion to Compel Interrogatory Responses [Dkt. # 49], CyWee Group Ltd.
`
`contends Defendants have not fully answered its Interrogatory Nos. 7, 8, 10, and 19.
`
`CyWee asks the Court to compel Defendants to do so.
`
`Interrogatory No. 7
`
`In this interrogatory, CyWee asks Defendants to
`
`Identify the Person or people that You believe would have participated in the
`Hypothetical Negotiation on Your behalf. If more than one Person, also Iden-
`tify the Person who would have been the decisionmaker.
`
`Pl.’s First Set of Interrogs. to Samsung [Dkt. # 49-1]. Defendants responded, “The Licens-
`
`ing Team within Samsung Electronics Co., Ltd., would have negotiated the hypothetical
`
`license.” Defs.’ Supp. Objs. & Resps. [Dkt. # 49-2] at 23. CyWee argues Defendants should
`
`identify all individuals on the Licensing Team from 2010 to the present “because it will
`
`1 / 6
`
`
`
`Case 2:17-cv-00140-RWS-RSP Document 62 Filed 01/24/18 Page 2 of 6 PageID #: 1487
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`unquestionably lead to the discovery of admissible evidence and, at a minimum, . . . allow
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`CyWee to obtain evidence necessary to prepare and evaluate its claims.” Pl.’s Motion [Dkt.
`
`# 49] at 5. CyWee does not explain what that necessary evidence is or why such evidence
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`is critical.
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`Regardless, the Court will grant the motion as to the identity of Licensing Team
`
`members, which can be reasonably expected to have knowledge concerning how Defend-
`
`ants conduct real-world licensing negotiations and what information Defendants typically
`
`consider. That knowledge is relevant to a hypothetical-negotiation analysis. See Lucent
`
`Technologies, Inc., v. Gateway, Inc., 580 F.3d 1301, 1334 (Fed. Cir. 2009) (cautioning
`
`against creating “a hypothetical negotiation far-removed from what parties regularly do
`
`during real-world licensing negotiations”); Hanson v. Alpine Valley Ski Area, Inc., 718 F.2d
`
`1075, 1081 (Fed. Cir. 1983) (“The issue of the infringer’s profit is to be determined . . . on
`
`the basis of what the parties to the hypothetical license negotiations would have considered
`
`at the time of the negotiations.”).
`
`The Court, however, will deny CyWee’s motion as to the remainder of Interrogatory
`
`No. 7, which seeks to compel Defendants to form a concrete belief as to which individuals
`
`would have actually participated in a negotiation that never happened. The Court knows of
`
`no basis for compelling a party to form such a belief. Of course, should Defendants form
`
`such a concrete belief in the future—such as incident to the development of expert re-
`
`ports—the Court expects timely supplementation.
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`2 / 6
`
`
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`Case 2:17-cv-00140-RWS-RSP Document 62 Filed 01/24/18 Page 3 of 6 PageID #: 1488
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`Interrogatory No. 8
`
`With this interrogatory, CyWee asks Defendants to,
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`[f]or the Person identified in Your Response to Interrogatory No. 7, Identify
`every License Agreement they have participated in negotiating.
`
`Pl.’s First Set of Interrogs. to Samsung [Dkt. # 49-1] at 6. CyWee defines “License Agree-
`
`ment” to mean
`
`any agreement (past and present) that includes a license, covenant not to sue
`or release for the infringement of any patent or other rights to use, make, sell,
`offer to sell or import Accused Products or Additional Products in the United
`States, including those where the granted rights include additional jurisdic-
`tions.
`
`Id. at 3. Together, Accused Products and Additional Products include all Samsung mobile
`
`phones sold in the United States since 2010. See id. at 1–2.
`
`Defendants respond they have already provided all relevant information. Defs.’
`
`Resp. [Dkt. # 51] at 4. Moreover, Defendants complain this interrogatory is too broad be-
`
`cause it calls for all licenses regardless of subject matter. Id. Defendants also claim identi-
`
`fying all licenses would be unreasonably burdensome, and that this interrogatory is not
`
`proportional to the needs of the case. Id. at 4–5.
`
`Defendants, however, have not met their burden of showing either lack of propor-
`
`tionality or undue burden. See Samsung Elecs. Am. Inc. v. Yang Kun “Michael” Chung,
`
`No. 3:15-CV-4108-D, 2017 WL 896897, at *11 (N.D. Tex. Mar. 7, 2017) (“a party seeking
`
`to resist discovery on these grounds still bears the burden of making a specific objection
`
`and showing that the discovery fails the proportionality calculation mandated by [Fed. R.
`
`3 / 6
`
`
`
`Case 2:17-cv-00140-RWS-RSP Document 62 Filed 01/24/18 Page 4 of 6 PageID #: 1489
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`Civ. P. 26(b)]”). As to the former, Defendants have not proffered any specifics concerning
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`the “substantial costs” of identifying the requested information. Similarly, Defendants’ un-
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`due-burden objections are boilerplate. And although Defendants complain about producing
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`the agreements, the interrogatory does not require production—only identification. Given
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`Defendants’ position as a sophisticated business entity, such identification should be
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`straightforward.
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`Although only comparable licenses are proper in a hypothetical-negotiation analy-
`
`sis, Defendants’ position allows them to unilaterally decide which licenses are comparable
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`and therefore worthy of production. CyWee should be able to explore whether Defendants’
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`selection of “comparable” licenses are too exclusive, and Defendants’ identification of the
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`requested licenses is part of allowing CyWee to do so. Thus, the Court will grant the motion
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`as to Interrogatory No. 8.
`
`Interrogatory No. 10
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`With this interrogatory, CyWee asks Defendants to
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`Identify all of Your products in existence or development at the time of the
`Hypothetical Negotiation whose sales (both actual and projected) would have
`been considered by You during the Hypothetical Negotiation.
`
`Pl.’s First Set of Interrogs. to Samsung [Dkt. # 49-1] at 7. CyWee contends this interroga-
`
`tory “simply asks Samsung to identify a category of products.” Pl.’s Motion [Dkt. # 49] at
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`7. Defendants responded they are “not aware of any product that it imports, makes, uses,
`
`sells, or offers to sell in the United States that practices any claim of the patents-in-suit.”
`
`Defs.’ Supp. Objs. & Resps. [Dkt. # 49-2] at 26. Defendants urge they can do no more
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`4 / 6
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`
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`Case 2:17-cv-00140-RWS-RSP Document 62 Filed 01/24/18 Page 5 of 6 PageID #: 1490
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`given the hypothetical nature of the interrogatory.
`
`The Court agrees with Defendants. This interrogatory seeks Defendants’ contention
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`as to which products are comparable for purposes of a hypothetical-negotiation analysis.
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`Considered in that light, the Court sees no basis to compel Defendants to form a belief as
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`to a negotiation that didn’t take place. See Woods v. DeAngelo Marine Exhaust, Inc., 692
`
`F.3d 1272, 1280 (Fed. Cir. 2012) (“[A]nswers to [contention] interrogatories may not come
`
`into focus until the end of discovery.”); O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc.,
`
`467 F.3d 1355, 1365 (Fed. Cir. 2006) (“Answers to [contention] interrogatories are often
`
`postponed until the close of discovery.”). The Court will therefore deny the motion as to
`
`this interrogatory, expecting that Defendants will respond at such time as they or their ex-
`
`pert actually form such a belief.
`
`Interrogatory No. 19
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`Finally, CyWee asks Defendants to
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`Identify all features of the Accused Products that You believe should be in-
`cluded in a conjoint study used to determine the value of the inventions
`claimed in the Patents-In-Suit.
`
`Pl.’s First Set of Interrogs. to Samsung [Dkt. # 49-1] at 8. Defendants object to this inter-
`
`rogatory as prematurely seeking expert discovery. Defs.’ Resp. [Dkt. # 51] at 7. Defendants
`
`also note they searched for conjoint studies potentially relevant to the features accused of
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`infringement, but found none. Id.
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`Here, too, the Court agrees with Defendants. This interrogatory requires Defendants
`
`to form a belief as to (1) whether a conjoint study is appropriate or desirable; and (2) how
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`5 / 6
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`
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`Case 2:17-cv-00140-RWS-RSP Document 62 Filed 01/24/18 Page 6 of 6 PageID #: 1491
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`such a study’s analysis should be conducted. The appropriate time for Defendants’ re-
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`sponse, if any, is during the expert disclosure phase of this proceeding. Thus, the Court will
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`deny CyWee’s motion as to this interrogatory.
`
`Conclusion
`
`The Court GRANTS CyWee’s Motion to Compel Interrogatory Responses [Dkt.
`
`# 49] IN PART. Specifically, the Court ORDERS Defendants to:
`
`(1)
`
`(2)
`
`Identify all members of its Licensing Team from 2010 to the present; and
`
`Identify any agreement (past and present) that includes a license, cov-
`enant not to sue or release for the infringement of any patent or other
`rights to use, make, sell, offer to sell or import Accused Products or
`Additional Products in the United States, including those where the
`granted rights include additional jurisdictions.
`
`The Court otherwise DENIES the Motion.
`
`6 / 6
`
`
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