Case 2:21-cv-00040-JRG Document 123 Filed 11/12/21 Page 1 of 6 PageID #: 3712
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`V.
`
`HUA WEI DEVICE CO., LTD.,
`HUA WEI DEVICE USA, INC.,
`
`Defendants.
`
`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`V.
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC. ,
`
`Defendants.
`
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`CASE NO. 2:21 -cv-00040-JRG
`(Lead Case)
`
`JURY TRIAL DEMANDED
`
`CASE NO. 2:21 -cv-00041-JRG
`(Member Case)
`
`JURY TRIAL DEMANDED
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`SAMSUNG DEFENDANTS' MOTION FOR LEA VE TO FILE REPLY IN SUPPORT OF
`THEIR MOTION TO COMPEL PRODUCTION OF RESPONSIVE DOCUMENTS
`(DKT.100)
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`V.
`
`HUA WEI DEVICE CO., LTD.,
`HUA WEI DEVICE USA, INC.,
`
`Defendants.
`
`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`V.
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC. ,
`
`Defendants.
`
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`CASE NO. 2:21 -cv-00040-JRG
`(Lead Case)
`
`JURY TRIAL DEMANDED
`
`CASE NO. 2:21 -cv-00041-JRG
`(Member Case)
`
`JURY TRIAL DEMANDED
`
`SAMSUNG DEFENDANTS' MOTION FOR LEA VE TO FILE REPLY IN SUPPORT OF
`THEIR MOTION TO COMPEL PRODUCTION OF RESPONSIVE DOCUMENTS
`(DKT.100)
`
`
`
`Case 2:21-cv-00040-JRG Document 123 Filed 11/12/21 Page 2 of 6 PageID #: 3713
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`Pursuant to Local Rule CV-7(k), Defendants Samsung Electrnnics Co., Ltd. and Samsung
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`Electronics America, Inc. ("Samsung") respectfully request leave to file a Reply in suppo1t of their
`
`Motion to Compel Production of Responsive Documents. Dkt. 100 ("Motion").1 The Motion
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`sought to compel production of documents regarding patent licensing efforts, valuations, and prior
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`licensing agreements relating to (1) the Asse1ted Patents or (2) "Po1t folio Patents," i.e. , patents
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`within other po1tfolios owned or controlled by Dr. P1yor. Mot. at 1. Specifically, Samsung sought
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`the production of documents and communications relating to Dr. P1yor's attempts to license the
`
`'-
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`Po1tfolio," which includes the four Asse1ted Patents in this action. Mot. at 3--4. GTP
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`opposed with a blanket asse1tion of privilege. Dkt. No. 113 at 3 ("[D]ocuments regarding the
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`negotiation of potential patent licenses ... are presumptively privileged .... ").
`
`Good cause exists to grant Samsung leave to file a Reply in light of new evidence GTP
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`disclosed in its damages expe1t repo1t. GTP's damages expe1t , Mr. David Kennedy, explicitly
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`referenced and relied on aspects of Dr. P1yor's strategy "regarding the negotiation of potential
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`patent licenses" for th e -Portfolio. For example, when discussing Factor 1 for his Georgia(cid:173)
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`Pacific Analysis, Mr. Kennedy attempted to explain why Dr. P1yor offer e d -a license to the
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`-Po1tfolio (including all four Asserted Patents) for just-
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`in 2016, stating:
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`1 Samsung and co-defendants Huawei Device Co., Ltd. and Huawei Device USA, Inc. ("Huawei")
`filed the present Motion to Compel on October 15, 2021. On October 19, 2021, GTP and Huawei
`filed a Notice of Pait ial Settlement. Dkt No. 101. In light of the Pa1tial Settlement, Samsung files
`this Motion for Leave without the Huawei Defendants.
`
`-1-
`
`
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`Case 2:21-cv-00040-JRG Document 123 Filed 11/12/21 Page 3 of 6 PageID #: 3714
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`Ex. A, ,r,r 223- 27 (emphasis added) . None of the docmnents GTP has produced to date, however,
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`evidence the understandings Mr. Kennedy claims to have obtained from Dr. P1yor.
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`Similarly regarding Dr. P1yor 's pmported strategy with respect to license negotiations, Mr.
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`Kennedy made an effo1i to explain the amount Dr. P1yor might accept from a willing licensee for
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`a license to the-Po1ifolio (including all fom Asse1ied Patents), stating:
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`Id. ,nf 174-75 (citing "Discussion with Dr. P1yor") (emphasis added). None of the docmnents GTP
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`has produced to date evidence the understandings Mr. Kennedy claims to have obtained from Dr.
`
`P1yor. Additional Negotiation Documents between Dr. P1yor and potential licensees may suppo1i
`
`or undennine these asse1iions. GTP cannot rely on back-channel infonnation from Dr. P1yor about
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`license negotiations and at the same time flatly refuse to provide discove1y as to those same
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`negotiations. See In re MSTG, Inc., 675 F.3d 1337, 1348 (Fed. Cir. 2012).
`
`To conserve the Comi ' s resom ces, Samsung limits this Reply to the issue of its request for
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`docmnents and communications relating to Dr. P1yor 's attempts to license the -
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`Po1ifolio.
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`Mot. at 3-4.2 These docmnents and communications are cm cial to this litigation; at the ve1y least,
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`Dr. P1yor offered - a license to the-P01ifolio (including the fom Asserted Patents)
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`for - in 2016, squarely within the period of alleged infringement by Samsung, yet now
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`GTP demands
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`in damages from Samsung for alleged infringement of the sam e
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`2 Samsung does not move for leave to file a Reply regarding the po1iion of its Motion seeking to
`compel the production of docmnents regarding the patent licensing effo1is, valuations, and prior
`licensing agreements of Dr. P1yor 's other "Po1ifolio Patents."
`
`-2-
`
`
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`Case 2:21-cv-00040-JRG Document 123 Filed 11/12/21 Page 4 of 6 PageID #: 3715
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`Asse1ied Patents. Mr. Kennedy had the luxmy of a full and frank conversation with Dr. P1yor
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`about his approach to the ve1y license negotiations that are the subject of Samsung's Motion.
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`Samsung respectfully requests that the Comi grant its motion for leave to file a Reply so that it
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`may have an equal chance to address the new evidence raised by GTP 's damages expert.
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`For the foregoing reasons, Samsung respectfully requests that the Comi grant its motion
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`for leave to file a Reply in suppo1i of its Motion to Compel Responsive Documents, Dkt. 100.
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`DATED: November 10, 2021
`
`Respectfully submitted,
`
`By: Isl Christopher W. Kennerlv
`Christopher W. Kennerly (TX Bar No. 00795077)
`chriskennerly@paulhastings.com
`Radhesh Devendran (pro hac vice)
`radheshdevendran@paulhastings.com
`Boris S. Lubarsky (pro hac vice)
`borislubarsky@paulhastings.com
`David M. Fox (pro hac vice)
`davidfox@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California A venue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1 900
`
`Allan M . Soobert
`allansoobert@paulhastings.com
`PAUL HASTINGS LLP
`2050 M Street NW
`Washington, D.C. 20036
`Telephone: 202-551-1 700
`Facsimile: 202-551-1 705
`
`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
`
`-3-
`
`
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`Case 2:21-cv-00040-JRG Document 123 Filed 11/12/21 Page 5 of 6 PageID #: 3716
`
`Robe1i Laurenzi
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park A venue
`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
`
`Attorneys for Defendants Samsung Electronics
`Co., Ltd and Samsung Electronics America, Inc.
`
`CERTIFICATE OF CONFERENCE
`
`Pursuant to Local Rules CV-7(h) and (i), counsel for Defendants met and confe1Ted with
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`counsel for Plaintiff. On November 8, 2021, Defendants emailed Plaintiff stating their intention
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`to file the present motion, and requested Plaintiffs position and its availability to meet and confer.
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`On November 9, having received no response from Plaintiff, Defendants followed up with the
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`same requests. Plaintiff responded, asking for Defendants' position in writing, and Defendants
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`provided it. On November 10, Plaintiff stated that is opposes the present motion. The pa1iies are
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`thus at an impasse. No agreement could be reached after good faith attempts to resolve the matters
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`raised by this motion, leaving an open issue for the Court to resolve.
`
`Isl Christopher W. Kennerly
`Christopher W. Kennerly
`
`-4-
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`
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`Case 2:21-cv-00040-JRG Document 123 Filed 11/12/21 Page 6 of 6 PageID #: 3717
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`CERTIFICATE OF AUTHORIZATION TO SEAL
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`I hereby ce1iify that under Local Rule CV-5(a)(7), the foregoing document is filed under
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`seal pursuant to the Comi's Protective Order entered in this matter.
`
`Isl Christopher W. Kennerlv
`Christopher W. Kennerly
`
`CERTIFICATE OF SERVICE
`
`I hereby ce1iify that a tiue and conect copy of the foregoing document was filed
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`electl'onically in compliance with Local Rule CV-5 on November 10, 2021. As of this date, all
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`counsel of record had consented to electi·onic service and are being served with a copy of this
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`document through the Comi's CM/ECF system under Local Rule CV-5(a)(3)(A) and by email.
`
`Isl Christopher W. Kennerlv
`Christopher W. Kennerly
`
`-5-
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