Case 2:21-cv-00040-JRG Document 118 Filed 11/08/21 Page 1 of 6 PageID #: 3670
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`
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`CASE NO. 2:21-cv-00040-JRG
`(Lead Case)
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`JURY TRIAL DEMANDED
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`CASE NO. 2:21-cv-00041-JRG
`(Member Case)
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`JURY TRIAL DEMANDED
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
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`Plaintiff
`
`v.
`
`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
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`Defendants.
`
`
`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S REPLY BRIEF IN SUPPORT OF THEIR MOTION
`FOR RECONSIDERATION OF THE COURT’S CLAIM CONSTRUCTION ORDER
`(DKT. 93) ON THE “FORWARD FACING” TERMS
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`

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`Case 2:21-cv-00040-JRG Document 118 Filed 11/08/21 Page 2 of 6 PageID #: 3671
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`I.
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`INTRODUCTION
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`GTP’s opposition fails to explain why Samsung should have been expected to present at
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`the Markman hearing evidence that only came into existence six days earlier to rebut a position
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`opposite from that taken by GTP and stated for the first time in the Court’s Claim Construction
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`Order. Further, GTP mischaracterizes disclaimer and indefiniteness as two competing inquiries
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`when in actuality, certainty as to what a claim term does not mean does not then provide certainty
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`as to what the claim term does mean. As a result, a claim term can be found indefinite even where
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`disclaimer applies, as is true here.
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`II.
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`ARGUMENT
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`GTP does not deny that it never took the position that the “forward facing” terms are used
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`in the claims merely as a label. Nor does GTP deny that it actually took the opposite position, that
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`“forward facing” refers to “a certain side of the claimed apparatus.” Dkt. 64 at 23–24. Although
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`the Court ruled that the “forward facing” terms should be given their plain meaning, the Court did
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`not adopt GTP’s view on what that plain meaning is. The Court instead stated that the “forward
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`facing” terms are used in the claims merely as a label, rejecting any notion that “forward facing”
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`refers to a “particular identifiable direction.” Id.
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`Samsung did not have an opportunity to present GTP’s IPR statements to address the
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`Court’s statement that the “forward facing” terms are used in the claims merely as a label because
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`GTP had never taken that position and the Court’s statement was not issued prior to the Claim
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`Construction Order. Rather, GTP had consistently taken the opposite position, i.e., that “forward
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`facing” is not merely a label but is material to patentability because it refers to a “certain side of
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`the claimed apparatus.” Dkt. 64 at 23–24. There was no reason for Samsung to address a position
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`opposite from the one GTP had consistently taken, especially in the mere six days between GTP’s
`
`-1-
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`

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`Case 2:21-cv-00040-JRG Document 118 Filed 11/08/21 Page 3 of 6 PageID #: 3672
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`IPR statements and the Markman hearing. As a result, the Court did not have the benefit of GTP’s
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`IPR statements when it held that the claims use “forward facing” merely as a label.
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`Further, GTP is incorrect that a disclaimer contradicts indefiniteness. First, GTP’s IPR
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`statements are clear and unambiguous that “upward facing” is not forward facing: “This upward
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`facing portion of the laptop, by the unambiguous language of Numazaki, is not forward facing, as
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`required by claim element [1(a)].” Dkt. 107, Ex. A (IPR2021-00921, Patent Owner’s Preliminary
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`Response) at 9 (emphasis in original). This amounts to prosecution disclaimer, and it contradicts
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`the Court’s finding that the claims use “forward facing” merely as a label. See Aylus Networks,
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`Inc. v. Apple Inc., 856 F. 3d 1353 (Fed. Cir. 2017) (“Accordingly, we hold that statements made
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`by a patent owner during an IPR proceeding, whether before or after an institution decision, can
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`be relied upon to support a finding of prosecution disclaimer.”).
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`GTP does not dispute that this is disclaimer, but instead argues that a finding of disclaimer
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`is inconsistent with Samsung’s indefiniteness position. However, disclaimer only provides clarity
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`as to what “forward facing” is not. It still leaves lack of clarity as to what “forward facing” is. In
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`fact, carving out “upward facing” from “forward facing” adds uncertainty to the scope of the claim
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`term. First, it means that “forward facing” is not just a label and that it must refer to a particular
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`identifiable side. Second, while it is clear that upward facing is not forward facing, it remains
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`unclear how one determines whether a portion of a device housing is forward facing as opposed
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`to upward facing. This is an acute issue for handheld devices such as the accused smartphones,
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`where a user can reorient the device to face any number of different directions while still being
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`able to operate the device in a customary manner. This confusion is compounded for the accused
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`foldable devices where the housing can be folded or unfolded.
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`-2-
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`Case 2:21-cv-00040-JRG Document 118 Filed 11/08/21 Page 4 of 6 PageID #: 3673
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`III. CONCLUSION
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`Samsung therefore respectfully requests that the Court reconsider its construction of the
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`“forward facing” terms in view of GTP’s unequivocal disclaimer made during IPR proceedings
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`and find that (1) because there is disclaimer, the claims do not use “forward facing” merely as a
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`label, and (2) in light of GTP’s disclaimer, the “forward facing” terms are indefinite because it is
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`unclear how to determine which side of a device, if any, is the “forward facing” side.
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`
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`DATED: November 8, 2021
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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
`Radhesh Devendran (pro hac vice)
`radheshdevendran@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
`
`Allan M. Soobert
`allansoobert@paulhastings.com
`PAUL HASTINGS LLP
`2050 M Street NW
`Washington, D.C. 20036
`Telephone: 202-551-1700
`Facsimile: 202-551-1705
`
`Elizabeth L. Brann
`elizabethbrann@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Telephone: (858) 458-3000
`Facsimile: (858) 458-3005
`
`Robert Laurenzi
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`
`-3-
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`

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`Case 2:21-cv-00040-JRG Document 118 Filed 11/08/21 Page 5 of 6 PageID #: 3674
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`
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`New York, NY 10166
`Telephone: (212) 318-6000
`Facsimile: (212) 319-4090
`
`Melissa R. Smith (TX Bar No. 24001351)
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`melissa@gillamsmithlaw.com
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`Attorneys for Defendants Samsung Electronics
`Co., Ltd and Samsung Electronics America, Inc.
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`-4-
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`Case 2:21-cv-00040-JRG Document 118 Filed 11/08/21 Page 6 of 6 PageID #: 3675
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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 November 8, 2021. As of this date, all
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`counsel of record had consented to electronic service and are being served with a copy of this
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`document through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A).
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`
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-5-
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