Case 2:17-cv-00140-RWS-RSP Document 63 Filed 01/26/18 Page 1 of 7 PageID #: 1492
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Plaintiff,
`
`CYWEE GROUP LTD.,
`
`
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`
`
`Defendants.
`
`No. 2:17-CV-00140-RWS-RSP
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`MEMORANDUM OPINION AND ORDER
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`In this patent case, the Court now considers Plaintiff CyWee’s Motion for Leave to
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`Amend Its Infringement Contentions [Dkt. # 44]. After considering the parties’ briefing,
`
`the Court will GRANT the Motion.
`
`I.
`
`BACKGROUND
`
`A.
`
`The Asserted Patents
`
`This lawsuit concerns U.S. Patents 8,441,438 and 8,552,978 (the Asserted Patents),
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`each of which teach a “pointing” device that translates its own movement relative to a first
`
`reference frame into a movement pattern in a display plane of a second, display reference
`
`frame. Because the display plane is chosen to correspond with a particular display device,
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`such as a computer screen, an associated processor generating a display signal to the
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`display device can then “move” an indicator (e.g., a computer icon or cursor) on the display
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`1 / 7
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Plaintiff,
`
`CYWEE GROUP LTD.,
`
`
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`
`
`Defendants.
`
`No. 2:17-CV-00140-RWS-RSP
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`MEMORANDUM OPINION AND ORDER
`
`In this patent case, the Court now considers Plaintiff CyWee’s Motion for Leave to
`
`Amend Its Infringement Contentions [Dkt. # 44]. After considering the parties’ briefing,
`
`the Court will GRANT the Motion.
`
`I.
`
`BACKGROUND
`
`A.
`
`The Asserted Patents
`
`This lawsuit concerns U.S. Patents 8,441,438 and 8,552,978 (the Asserted Patents),
`
`each of which teach a “pointing” device that translates its own movement relative to a first
`
`reference frame into a movement pattern in a display plane of a second, display reference
`
`frame. Because the display plane is chosen to correspond with a particular display device,
`
`such as a computer screen, an associated processor generating a display signal to the
`
`display device can then “move” an indicator (e.g., a computer icon or cursor) on the display
`
`1 / 7
`
`
`
`Case 2:17-cv-00140-RWS-RSP Document 63 Filed 01/26/18 Page 2 of 7 PageID #: 1493
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`according to the movement pattern. ’438 Patent at (57); ’978 Patent at (57).
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`Generally, this concept predates the Asserted Patents. See, e.g., ’438 Patent at 2:38–
`
`47 (referencing prior art). The patents, however, specifically purport to solve a prior-art
`
`problem of inaccurately calculating or obtaining the change in angular velocities and
`
`accelerations of the device when subjected to unexpected movements, particularly in a
`
`direction parallel to the force of gravity. See id. at 2:55–3:5. The patents also criticize the
`
`prior art for outputting only a two-dimensional movement pattern. See id. at 2:47–55 (“the
`
`pointing device of Liberty cannot output deviation angles readily in [a] 3D reference frame
`
`but rather a 2D reference frame only and the output of such device having 5-axis motion
`
`sensors is a planar pattern in [a] 2D reference frame only”).
`
`To address these shortcomings, the ’438 Patent teaches (1) use of various sensors to
`
`measure angular velocities and axial accelerations of three reference axes of the device
`
`and, (2) predicting the axial accelerations of the three references axes from the measured
`
`angular velocities. The claimed device uses the measured angular velocities, measured
`
`axial accelerations, and predicted axial accelerations to calculate a deviation of the yaw,
`
`pitch, and roll angles of the device over a change in time. The claimed device then translates
`
`that deviation into a movement pattern within the display reference frame. See generally
`
`’438 Patent at 7:56–9:5.
`
`The ’978 Patent, which is a continuation-in-part of the ’438 Patent, introduces
`
`magnetism to the methodology. Specifically, a magnetometer measures magnetism
`
`associated with the three reference axes of the first reference frame. In addition, the ’978
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`Case 2:17-cv-00140-RWS-RSP Document 63 Filed 01/26/18 Page 3 of 7 PageID #: 1494
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`Patent teaches predicting the magnetism associated with each of the three axes and using
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`both the measured and predicted magnetisms—along with the measured angular velocities,
`
`measured axial accelerations, and predicted axial accelerations already contemplated by
`
`the ’438 Patent—to determine deviation of the yaw, pitch, and roll. See generally ’978
`
`Patent at 22:9–23:10.
`
`B.
`
`CyWee’s Preliminary Infringement Contentions and Proposed
`Amended Infringement Contentions
`
`In July 2017, CyWee served infringement contentions accusing 15 Samsung devices
`
`of infringing claims of the Asserted Patents. Pl.’s P.R. 3-1 & 3-2 Disclosures [Dkt. # 41-2]
`
`at 2. But CyWee only provided claim charts for 14 of the identified devices.
`
`In September 2017, CyWee served additional contentions charting the Galaxy Note
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`7, which was the only identified device without an associated claim chart, and three
`
`previously unidentified devices: the Galaxy J7 (2017), the Galaxy J7 V, and the Galaxy S8
`
`Active. CyWee contends specific information about these last three devices was unavailable
`
`when its preliminary contentions were due because Samsung did not release these devices
`
`until March 2017 or later. Pl.’s Motion [Dkt. # 44] at 2. Given that timing, CyWee asserts it
`
`has been diligent in amending its infringement contentions to include the Galaxy J7 models
`
`and the Galaxy S8 Active. CyWee’s motion is silent about why it did not chart the Note 7
`
`in its preliminary contentions.1
`
`
`1 CyWee previously argued a worldwide recall of the Note 7 prevented it from obtaining a
`unit for analysis. Pl.’s Opp’n to Defs.’ Mot. to Strike [Dkt. # 43] at 2–3.
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`3 / 7
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`
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`Case 2:17-cv-00140-RWS-RSP Document 63 Filed 01/26/18 Page 4 of 7 PageID #: 1495
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`Samsung’s response is threefold. First, Samsung disputes CyWee’s representations
`
`about the availability of public information concerning the two Galaxy J7 products. Defs.’
`
`Resp. [Dkt. # 47] at 3–6. Second, CyWee’s existing claim charts should not be considered
`
`“representative” such that Samsung is deemed to have notice of the four new devices
`
`because of their similarity to the devices charted in CyWee’s preliminary infringement
`
`contentions. Id. at 6–7. Third, allowing CyWee to amend its contentions would unfairly
`
`prejudice Samsung. Id. at 7–8. Thus, says Samsung, CyWee cannot show the good cause
`
`required for leave to amend.
`
`II.
`
`APPLICABLE LAW
`
`When a party seeks to amend its infringement contentions, leave to amend is
`
`generally required and may only be granted upon a showing of good cause. P.R. 3-6(b). In
`
`determining good cause, courts consider (1) the reason for the delay and whether the party
`
`has been diligent; (2) the importance of what the court is excluding and the availability of
`
`lesser sanctions; (3) potential prejudice in allowing the amendment; and (4) the availability
`
`of a continuance to cure such prejudice. S&W Enters., LLC v. SouthTrust Bank of Alabama,
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`NA, 315 F.3d 533, 536 (5th Cir. 2003); see also Motion Games, LLC v. Nintendo Co., No.
`
`6:12-CV-00878, 2015 WL 1774448, at *2 (E.D. Tex. Apr. 16, 2015).
`
`III. DISCUSSION
`
`A.
`
`CyWee’s Diligence
`
`This consideration weighs against leave for the Galaxy Note 7 and Galaxy J7 V
`
`devices. As to the Note 7, CyWee does not explain why it could not at least chart aspects
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`4 / 7
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`Case 2:17-cv-00140-RWS-RSP Document 63 Filed 01/26/18 Page 5 of 7 PageID #: 1496
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`of the device in July 2017 given it now relies on public information available at that time.
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`Regarding the Galaxy J7 V, its March 2017 release date allowed CyWee ample time to seek
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`leave to amend before it filed the present motion. Because CyWee waited until October to
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`seek leave for these two devices, its lack of diligence weighs against leave.
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`But this consideration weighs in favor of leave as to the Galaxy J7 (2017) and
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`Galaxy S8. The Galaxy J7 (2017) was not available until July 2017. Samsung released the
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`Galaxy S8 in August 2017. Having filed the present motion in October, CyWee was
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`reasonably diligent in seeking leave as to these devices.
`
`B.
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`Importance of the Subject Matter to the Case
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`This factor is neutral. Clearly, the additional products are important to CyWee from
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`an efficiency standpoint, and CyWee would prefer to try one case involving all accused
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`devices. But these devices are not otherwise important to the lawsuit as it currently stands.
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`CyWee would not be prejudiced if the Court excluded these devices from this lawsuit given
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`CyWee could file a new lawsuit directed to these devices.
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`C.
`
`Potential Prejudice to Samsung
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`There is little, if any, prejudice to Samsung in granting leave. First, the Court has
`
`reviewed the proposed contentions and compared them with CyWee’s timely claim charts
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`for the S7 Edge.2 Based on that comparison, the Court concludes CyWee is not changing
`
`
`2 CyWee’s proposed amended contentions are Exhibits G–N to CyWee’s Response to Def.’s
`Motion to Strike [Dkt. # 43]. Exhibits B–C are CyWee’s preliminary infringement
`contentions for the S7 Edge.
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`5 / 7
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`Case 2:17-cv-00140-RWS-RSP Document 63 Filed 01/26/18 Page 6 of 7 PageID #: 1497
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`its infringement theory relative to its preliminary infringement contentions.
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`Second, although Samsung argues it would have to expend significant resources
`
`analyzing CyWee’s claims for the devices at issue, that’s true even if the devices had been
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`identified in the July 2017 contentions. And although Samsung suggests adding the devices
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`could impact its claim construction positions, that’s unlikely given accused products are
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`generally irrelevant to claim construction. See NeoMagic Corp. v. Trident Microsystems,
`
`Inc., 287 F.3d 1062, 1074 (Fed. Cir. 2002) (noting “[i]t is well settled that claims may not
`
`be construed by reference to the accused device”).
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`D.
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`Availability of a Continuance and Stage of the Proceeding
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`Even if Samsung were to suffer some prejudice, the stage of the proceeding provides
`
`the Court and the parties with options for addressing any actual prejudice arising from the
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`addition of these devices. The parties have only recently filed their Joint Claim
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`Construction and Prehearing Statement [Dkt. # 57] (filed Jan. 12, 2018), and CyWee’s
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`opening claim construction brief is not due until February 23. Dkt. Control Order [Dkt.
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`# 34] at 3. If necessary, Samsung can move for additional time to address specific
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`unanticipated claim construction issues caused by the addition of these devices to CyWee’s
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`infringement contentions. This consideration therefore weighs in favor of leave.
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`IV. CONCLUSION
`
`The Court concludes the good-cause considerations justify leave to amend as to each
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`of the four devices, even considering CyWee’s lack of diligence as to the Note 7 and Galaxy
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`J7 (2017). The lack of probable prejudice to Samsung from leave, combined with the
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`Case 2:17-cv-00140-RWS-RSP Document 63 Filed 01/26/18 Page 7 of 7 PageID #: 1498
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`Court’s ability to address any actual prejudice in light of the current stage of the proceeding,
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`outweighs lack of diligence as to those two devices. Moreover, the Court finds judicial
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`efficiency weighs in favor of leave so all accused products alleged to infringe under the
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`same infringement theory can be considered in the same proceeding. The Court therefore
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`GRANTS Plaintiff CyWee’s Motion for Leave to Amend Its Infringement Contentions
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`[Dkt. # 44] as to all four devices.
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`7 / 7
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