Case 2:17-cv-00140-WCB-RSP Document 76 Filed 04/05/18 Page 1 of 8 PageID #: 2277
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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’ SUR-REPLY CLAIM CONSTRUCTION BRIEF
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`Case 2:17-cv-00140-WCB-RSP Document 76 Filed 04/05/18 Page 2 of 8 PageID #: 2278
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`CyWee’s reply brief fails on numerous levels. The asserted claims require comparing angular
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`velocities with “axial accelerations.” It is undisputed that the term “axial accelerations” can include
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`linear, centrifugal, and gravitational accelerations. CyWee cannot explain which axial acceleration is
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`compared, a distinction that affects the scope of the claims. Even if the patents-in-suit provided
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`such guidance, it is undisputed that an accelerometer cannot distinguish between the three
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`accelerations, making the comparison practically impossible. And a meaningful comparison between
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`an object’s angular velocities and axial accelerations is mathematically impossible.
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`CyWee’s relies on its expert to state that the patents cover an Extended Kalman filter—a
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`term not found in the patents or CyWee’s proposed constructions. The relevant inquiry, however, is
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`whether the claims, read in light of the specification and the prosecution history, fail to inform “with
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`reasonable certainty, those skilled in the art [i.e., a ‘POSA’] about the scope of the invention.”
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`Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2124 (2014). The patents-in-suit do not disclose
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`the type of axial acceleration used and CyWee’s expert cannot as a matter of law provide what the
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`intrinsic evidence lacks: reasonable certainty about the scope of the patent claims.
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`I.
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`“Utilizing a comparison to compare the first signal set with the second signal set”
`(’438 Patent, Claim 1)
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`CyWee incorrectly argues that the patents are definite because its expert, Dr. LaViola, has
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`concluded that they disclose an Extended Kalman filter (“EKF”). Reply Br. at 1–2. This argument is
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`unsupportable. Neither the patent claims nor their specifications recite the term “Kalman filter” or
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`“Extended Kalman filter.” Instead, Dr. LaViola concludes Equations 5–11 disclose an Extended
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`Kalman filter and that a POSA would have known this filter implements the comparison. However,
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`these equations are filled with undisclosed functions and variables. Mercer Decl. ISO Resp. Br. ¶
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`119–29. Even Dr. LaViola could not identify what the equations disclosed, testifying both that
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`Equation 11 is the “actual equation that will do the comparison” (Brann Decl. ISO Resp. Br., Ex. 4
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`at 61:20–22) and that “it’s slightly unclear what Equation 11 is doing.” Id. at 129:15–17. Further,
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`Case 2:17-cv-00140-WCB-RSP Document 76 Filed 04/05/18 Page 3 of 8 PageID #: 2279
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`none of the equations (including Equation 11) recite or use the variables for axial accelerations (Ax,
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`Ay, Az) or predicted axial accelerations (Ax’, Ay’, Az’). Indeed, it is telling that CyWee’s proposed
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`construction does not incorporate the term “Extended Kalman filter” or Equations 5–11.
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`Even assuming that Dr. LaViola is correct, his testimony would not affect whether a POSA
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`could determine the meaning of “utilizing a comparison . . .” with reasonable certainty. This case is
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`similar to Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 789 F.3d 1335 (Fed. Cir. 2015). There, the
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`asserted claim recited a copolymer having a specific “molecular weight.” Id. at 1341. The parties
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`agreed that the term “molecular weight” had multiple meanings with different methods of
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`calculation, but neither the claims nor specification provided guidance on which measure of
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`“molecular weight” was covered. Id. The patentee’s expert testified a POSA would have known to
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`obtain the “molecular weight” in a certain way. Id. at 1341–42. The Federal Circuit found that even
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`accepting the expert’s findings, these statements could not resolve the ambiguity in the intrinsic
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`evidence regarding which “molecular weight” to use. Id. at 1344–45. Here, the parties agree that the
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`term “axial accelerations” can include multiple types of acceleration. It is also undisputed that the
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`specification does not clarify which “axial acceleration” is being compared with an “angular
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`velocity.” Even assuming Dr. LaViola is correct that such a comparison could be done using an
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`Extended Kalman filter, this testimony (as in Teva) would not outweigh the fundamental ambiguity
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`in the patents as to which “axial acceleration” is being compared with an “angular velocity.”
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`Dr. LaViola’s testimony is also technically incorrect. As set forth in Samsung’s Responsive
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`Brief, linear, centrifugal and gravitational accelerations are inseparably combined together when read
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`by an accelerometer—a technical limitation that is undisputed. See Resp. Br. at 6–7. Although an
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`Extended Kalman filter deals with system and measurement noise, it is not designed to separate
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`accelerometer readings into their component parts (i.e., linear, centrifugal, and gravitational
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`acceleration). Resp. Br. at 9–10. Neither CyWee nor its expert explain how the filter would do so.
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`Case 2:17-cv-00140-WCB-RSP Document 76 Filed 04/05/18 Page 4 of 8 PageID #: 2280
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`Notably, Dr. LaViola draws his conclusions not from the patents, but from Mercer Deposition
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`Exhibit 7, a Wikipedia article, and Mercer Deposition Exhibit 8, an article cited in Exhibit 7, both of
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`which were not included in the Joint Claim Construction Statement. LaViola Suppl. Decl. ¶ 9. Even
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`if these articles had properly been disclosed, nothing in these articles resolves the ambiguity in the
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`patents as to which “axial acceleration” is being compared with “angular velocities” or explains how
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`this comparison is possible. Indeed, in making this argument, CyWee asks the Court to ignore its
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`arguments in the CyWee v. Apple litigation. There, CyWee argued both that the patents do not cover
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`Kalman filters (Brann Decl., Ex. 5 at 20–22) and “essentially” cover an “enhanced Kalman filter”
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`(Reply Br., Ex. B), which contradicts its position here that the patents just cover “elements of an
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`Extended Kalman filter” (Reply Br. at 1) or filters “such as” an Extended Kalman filter (Supp.
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`Brann Decl., Ex. 12). These contradictory positions demonstrate that CyWee’s own experts disagree
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`about the meaning of the term, discounting the value of their testimony regarding whether a
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`POSITA would be informed of the scope of the patent claims with reasonable certainty.
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`CyWee also argues that the patents themselves identify the problem of “unwanted
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`accelerations” and discuss handling “errors.” The key point, however, is that the ’438 Patent does
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`not solve this problem, and thus its disclosure cannot resolve the ambiguity in its claims. None of
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`CyWee’s cited cases support its position. In Accordant Energy, LLC v. Vexor Technolgy, Inc., No. 1:17
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`CV 411, 2017 U.S. Dist. LEXIS 192603 (N.D. Ohio Nov. 21, 2017), a term with multiple definitions
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`did not automatically render the claim indefinite instead, the critical question was whether the claim
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`failed to inform those skilled in the art about the scope of the invention with reasonable certainty.
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`Id. at *22. Here, the multiple interpretations of “axial accelerations” do so fail to inform a POSA. In
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`Veracode, Inc. v. Appthority, Inc., 137 F. Supp. 3d 17 (D. Mass. 2015), the court found only that the
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`term “program errors” was not indefinite when there was substantial evidence that the term did not
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`include certain types of error. Id. at 57. The same is not true here given the lack of evidence about
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`Case 2:17-cv-00140-WCB-RSP Document 76 Filed 04/05/18 Page 5 of 8 PageID #: 2281
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`the type of axial accelerations used. In Thomas Swan & Co. v. Finisar Corp., No. 2:13-cv-00178-JRG,
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`2014 U.S. Dist. LEXIS 86209 (E.D. Tex. June 25, 2014), the Court found that specifying different
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`types of “holograms” in the dependent claims did not render the term “hologram” in an
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`independent claim indefinite. Id. at *30. Here, the type of axial accelerations used is not stated
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`anywhere, including in the asserted dependent claims. Contrary to CyWee’s arguments that the
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`Court’s case law is “readily distinguishable” (Reply Br. at 3), the Court has found claim terms
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`indefinite under almost identical circumstances. Resp. Br. at 6–8. In Innovative Display Technologies
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`LLC v. Hyundai Motor Co., No. 2:14-CV-201-JRG, 2015 U.S. Dist. LEXIS 57810 (E.D. Tex. May 4,
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`2015), the Court held that the term “more in the width direction” was indefinite because its multiple,
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`equally plausible interpretations changed the scope of the claim. Id. at *71–74. Further, in Invensys
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`Systems, Inc. v. Emerson Electric Co., No. 6:12-cv-799, 2014 U.S. Dist. LEXIS 108401 (E.D. Tex. Aug.
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`6, 2014) (a case CyWee does not address), the Court found a claim term was indefinite where it
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`required a mathematically impossible calculation. Id. at *18–20.
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`CyWee devotes the remainder of its reply to arguments that are legally irrelevant. CyWee
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`incredibly attacks Samsung expert Dr. Ray Mercer’s qualifications. Reply Br. at 1–2. Dr. Mercer is a
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`Professor Emeritus of Electrical Engineering and Computer Engineering at Texas A&M University
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`with forty-seven years of industry and academic experience, including experience with data
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`collection using orientation sensors and filtering and estimation techniques. Mercer Decl. ¶¶ 7–9.
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`His credentials far exceed CyWee’s definition of a POSA—a person with “at least a Bachelor’s
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`Degree in Computer Science, Electrical Engineering, Mechanical Engineering, or Physics or
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`equivalent work experience, along with knowledge of sensors (such as accelerometers, gyroscopes,
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`and magnetometers), and mobile computing technologies.” LaViola Feb. 23, 2018 Decl. ¶ 11. And
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`CyWee’s own expert has never obtained a patent on a Kalman filter. See Ex. A to LaViola Feb. 23,
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`2018 Decl.. CyWee also argues that Samsung conceded its understanding of “axial accelerations” in
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`Case 2:17-cv-00140-WCB-RSP Document 76 Filed 04/05/18 Page 6 of 8 PageID #: 2282
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`other limitations, but that difference is not material to those limitations. See Resp. Br. at 11. Finally,
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`CyWee argues that Samsung’s expert admitted that the 3D pointing devices disclosed in the patents
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`are rigid bodies, but the body of the 3D pointing device is immaterial. Resp. Br. at 11; Supp. Brann
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`Decl. Ex. 13 at 107:10–113:5. Instead, CyWee’s expert conceded that the relevant body is the body
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`that induces the motion of this 3D pointing device. Resp. Br. at 11.
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`II.
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`“Comparing the second quaternion in relation to the measured angular velocities ωx,
`ωy, ωz of the current state at current time T with the measured axial accelerations
`Ax, Ay, Az and the predicted axial accelerations Ax', Ay', Az' also at current time T”
`(’438 Patent, Claims 14 and 19)
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`CyWee makes substantively identical arguments for this term which fail for the same reasons
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`above. CyWee also argues the patents are definite because Dr. LaViola concluded that Equations 2-4
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`disclose “predicted axial accelerations” derived from a quaternion. Reply Br. at 4–5. Even if Dr.
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`LaViola could rehabilitate the patents (which he cannot), a quaternion is merely a mathematical
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`notation and would not resolve the patents’ indefiniteness issues. Mercer Decl. ¶¶ 173–75.
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`III.
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`“Generating the orientation output based on the first signal set, the second signal set
`and the rotation output or based on the first signal set and the second signal set”
`(’978 Patent, Claim 10)
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`Similar to the terms above, CyWee’s reply essentially restates its argument that Samsung
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`relies on a “fundamental misunderstanding of an EKF and its variants” (Reply Br. at 5) and
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`therefore fails for the same reasons. Indeed, CyWee argues that Equations 5–11 of the ’978 Patent
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`act as a “blueprint” for how to calculate the orientation of the 3D pointing device using magnetism
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`readings, but the equations do not even recite or use the variables Mx, My, and Mz—the
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`measurements from the magnetometer (’978 Patent, 35:5–10).
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`IV.
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`Conclusion
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`CyWee’s expert testimony cannot provide what the intrinsic evidence lacks: reasonable
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`certainty about the scope of the patent claims. Therefore, Samsung respectfully requests that the
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`Court find each asserted claim invalid as indefinite.
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`Case 2:17-cv-00140-WCB-RSP Document 76 Filed 04/05/18 Page 7 of 8 PageID #: 2283
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`DATED: April 5, 2018
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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
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`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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`Case 2:17-cv-00140-WCB-RSP Document 76 Filed 04/05/18 Page 8 of 8 PageID #: 2284
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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 April 5, 2018. As of this date, all counsel of
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`record had consented to electronic service and are being served with a copy of this document
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`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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