Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 1 of 20 PageID #: 5877
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`
`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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` §
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`§
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`
`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`v.
`
`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
`
`Defendants.
`
`
`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`Defendants.
`
`SAMSUNG DEFENDANTS’ MOTION TO PRECLUDE
`THE OPINIONS AND TESTIMONY OF PLAINTIFF’S TECHNICAL EXPERT
`BENEDICT OCCHIOGROSSO
`
`
`
`
`
`

`

`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 2 of 20 PageID #: 5878
`
`
`TABLE OF CONTENTS
`
`
`
`I.
`II.
`III.
`IV.
`
`V.
`
`Page
`INTRODUCTION ............................................................................................................. 1
`THE OCCHIOGROSSO REPORT AND RELATED BACKGROUND ......................... 1
`LEGAL STANDARD ........................................................................................................ 2
`ARGUMENT ..................................................................................................................... 3
`A.
`Mr. Occhiogrosso Failed to Identify Any Evidence That Samsung
`Performed the Method Claims in the United States............................................... 3
`Mr. Occhiogrosso Failed to Set Forth any Opinions regarding Contested
`Applications ........................................................................................................... 5
`Mr. Occhiogrosso Should be Precluded from Relying on or Testifying
`with Regard to any Document or Code Not Discussed in the Body of His
`Report ..................................................................................................................... 6
`Mr. Occhiogrosso Should be Precluded from Providing New Infringement
`Theories that GTP Did Not Disclose in Its Infringement Contentions .................. 7
`1.
`’431 Patent Claim 7 – Opinions as to Air Gestures, Palm Solution,
`and AR Emoji should be excluded ............................................................. 7
`’431 Patent Claim 19 – All opinions should be excluded .......................... 8
`2.
`’431 Patent Claim 27 – All opinions should be excluded .......................... 9
`3.
`’431 Patent Claim 28 – All opinions should be excluded ........................ 10
`4.
`’924 Patent Claim 10 – All opinions should be excluded ........................ 11
`5.
`’924 Patent Claim 12 – All opinions should be excluded ........................ 11
`6.
`’079 Patent Claim 30 – All opinions should be excluded ........................ 12
`7.
`’949 Patent Claim 13 – All opinions should be excluded ........................ 12
`8.
`Mr. Occhiogrosso Opinions Regarding “Gestures” Should be Excluded for
`Contradicting the Court’s Claim Construction Order .......................................... 13
`Mr. Occhiogrosso Opinions Regarding Whether the Accused Products
`Meet the “Oriented to View a User” Limitation Should be Excluded ................. 14
`CONCLUSION ................................................................................................................ 15
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`-i-
`
`

`

`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 3 of 20 PageID #: 5879
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`
`
`Page(s)
`
`Finjan, Inc. v. Secure Computing Corp.,
`626 F.3d 1197 (Fed. Cir. 2010)..................................................................................................4
`
`Joy Techs., Inc. v. Flakt, Inc.,
`6 F.3d 770 (Fed. Cir. 1993) .......................................................................................................4
`
`KlausTech, Inc. v. Google LLC,
`No. 10-cv-05899-JSW (DMR), 2018 WL 5109383 (N.D. Cal. Sept. 14, 2018),
`subsequently aff’d, 792 F. App’x 954 (Fed. Cir. 2020) .............................................................3
`
`Meyer Intel. Props. Ltd. v. Bodum, Inc.,
`690 F.3d 1354 (Fed. Cir. 2012)..................................................................................................4
`
`NTP, Inc. v. Rsch. in Motion, Ltd.,
`418 F.3d 1282 (Fed. Cir. 2005), abrogated on other grounds by IRIS Corp. v.
`Japan Airlines Corp., 769 F.3d 1359 (Fed. Cir. 2014) ..............................................................4
`
`Opal Run LLC v. C & A Mktg., Inc.,
`No. 2:16-CV-24-JRG-RSP, 2017 U.S. Dist. LEXIS 126522 (E.D. Tex. May
`15, 2017) ................................................................................................................................2, 6
`
`Packet Intelligence LLC v. NetScout Sys., Inc.,
`965 F.3d 1299 (Fed. Cir. 2020)..................................................................................................4
`
`ROY-G-BIV Corp. v. ABB, Ltd.,
`63 F. Supp. 3d 690 (E.D. Tex. 2014) .....................................................................................2, 7
`
`Sundance, Inc. v. DeMonte Fabricating, Ltd.,
`550 F.3d 1356 (Fed. Cir. 2008)..................................................................................................2
`
`Statutes
`
`35 U.S.C. § 112 ................................................................................................................................7
`
`Other Authorities
`
`Fed. R. Evid. 702 .........................................................................................................................1, 2
`
`P.R. 3-1(c) ........................................................................................................................................7
`
`-ii-
`
`

`

`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 4 of 20 PageID #: 5880
`
`
`I.
`
`INTRODUCTION
`
`Pursuant to Federal Rule of Evidence 702, Defendants Samsung Electronics Co. Ltd. and
`
`Samsung Electronics America, Inc. (collectively, “Samsung) move to exclude the opinions and
`
`testimony of Plaintiff Gesture Technology Partners, LLC’s (“GTP”) technical expert, Mr. Benedict
`
`Occhiogrosso. In his expert report on purported infringement, Mr. Occhiogrosso did not provide
`
`any opinion on infringement of the asserted method claims, infringement of certain features that
`
`have been disputed by the parties since the inception of the case, and infringement relating to
`
`unspecified documents and source code. Any testimony by Mr. Occhiogrosso at trial on these
`
`issues should be precluded. Further, Mr. Occhiogrosso’s report presented new infringement
`
`theories that were never disclosed in GTP’s infringement contentions. Because GTP failed to
`
`timely disclose these theories, Mr. Occhiogrosso’s expert report on these theories should be
`
`stricken and testimony in support of such theories should be precluded. Finally, Mr. Occhiogrosso
`
`presented infringement theories that ignored the Court’s Markman Order and failed to take claim
`
`language into consideration. These opinions too should be stricken and the related testimony
`
`precluded.
`
`II.
`
`THE OCCHIOGROSSO REPORT AND RELATED BACKGROUND
`
`GTP accuses specified Samsung smartphones and tablets of infringing various claims of
`
`U.S. Patent Nos. 7,933,431 (“’431 Patent”), 8,553,079 (“079 Patent”), 8,194,924 (“’924 Patent”)
`
`and 8,878,949 (“’949 Patent”) (collectively, “Patents-in-Suit”). No. 2:21-cv-00040-JRG, Dkt. No.
`
`1, 1-1, 1-2, 1-3, 1-4. Both in its infringement contentions and its technical expert’s opening report
`
`on infringement (“Occhiogrosso Report”), GTP alleged that a total of 32 Samsung smartphones
`
`and tablets (“Accused Products”) infringe the Patents-in-Suit. Ex. 8, pp. 2-13 (September 20, 2021
`
`Disclosure of Asserted Claims and Supplemental Amended Infringement Contentions, hereafter
`
`-1-
`
`

`

`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 5 of 20 PageID #: 5881
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`
`“Final Infringement Contentions); Ex. 1, ¶ 42 (Occhiogrosso Report).1 Further, Mr. Occhiogrosso
`
`alleged that Samsung infringes method claims “through its use of” seven features found on the
`
`Accused Products.2 See, e.g., Ex. 1, Ex. SAMSUNG-431 at 7. Mr. Occhiogrosso’s report alleges
`
`that Samsung directly infringed 33 method claims, but presented no evidence that Samsung
`
`actually “used” the Accused Products.3 Ex. 1, ¶ 219. Mr. Occhiogrosso also presented no theory
`
`of infringement for any Asserted Claim relating to the Contested Applications. Mr. Occhiogrosso
`
`made reference to a voluminous collection of document and source code, but does not anywhere
`
`in his report discuss or apply most of them. Ex. 1, Ex. A - Materials Considered, V and VI. Mr.
`
`Occhiogrosso presented new infringement theories for eight claims of the Patents-in-Suit that GTP
`
`did not disclose in its infringement contentions.
`
`III. LEGAL STANDARD
`
`District courts are charged with a “gatekeeping role” to ensure that expert testimony
`
`admitted into evidence is both “reliable and relevant.” Sundance, Inc. v. DeMonte Fabricating,
`
`Ltd., 550 F.3d 1356, 1360 (Fed. Cir. 2008); see also Fed. R. Evid. 702. “Expert infringement
`
`reports may not introduce theories not previously set forth in infringement contentions.” ROY-G-
`
`BIV Corp. v. ABB, Ltd., 63 F. Supp. 3d 690, 699 (E.D. Tex. 2014); see also Opal Run LLC v. C &
`
`
`1 Unless otherwise stated, all exhibits referenced herein are attached to the Declaration of Radhesh
`Devendran in Support of Defendants’ Motion to Preclude Expert Testimony and Opinions of
`Plaintiff’s Technical Expert Mr. Benedict Occhiogrosso.
`2 Early in the litigation, GTP alleged infringement by Samsung’s accused smartphones and tablets
`in conjunction with a total of 24 features. No. 2:21-cv-00040-JRG, Dkt. No. 1, ¶¶ 24-25; Dkt. No.
`51-6 (June 16, 2021 Disclosure of Asserted Claims and Amended Infringement Contentions), pp.
`2-18; e.g., Ex. A to id., p. 2. Samsung moved to dismiss GTP’s complaint, strike GTP’s
`infringement contentions, and sought a protective order from discovery regarding all but seven of
`the features in view of GTP’s failure to properly identify and provide required disclosure as to its
`infringement theories for the other features (“the Contested Applications”). Dkt. Nos. 23, 51, 84.
`Those motions remain pending.
`3 The asserted method claims are: Claims 1-3, 6, 14-22, 25-28 and 30 of the ’431 Patent, and
`Claims 1-6, 8-9, 21-25, 28, and 30 of the’079 Patent (collectively “the Asserted Method Claims”).
`
`-2-
`
`

`

`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 6 of 20 PageID #: 5882
`
`
`A Mktg., Inc., No. 2:16-CV-24-JRG-RSP, 2017 U.S. Dist. LEXIS 126522, at *6 (E.D. Tex. May
`
`15, 2017) (striking infringement theories first introduced in expert reports when plaintiffs could
`
`have identified them in their infringement contentions based on publicly available information).
`
`The inquiry is whether the undisclosed theory “is in fact a new theory or new element of the
`
`accused product alleged to practice a particular claim that was not previously identified in the
`
`plaintiff’s contentions, or whether the theory is instead the identification of additional evidentiary
`
`proof showing that the accused element did in fact practice the limitation.” KlausTech, Inc. v.
`
`Google LLC, No. 10-cv-05899-JSW (DMR), 2018 WL 5109383, at *3 (N.D. Cal. Sept. 14, 2018)
`
`(citations omitted), subsequently aff’d, 792 F. App’x 954 (Fed. Cir. 2020).
`
`IV. ARGUMENT
`A. Mr. Occhiogrosso Failed to Identify Any Evidence That Samsung Performed
`the Method Claims in the United States
`
`Mr. Occhiogrosso testified that his opinion is that only Samsung performs the Asserted
`
`Method Claims, not any third parties. Ex. 2, Occhiogrosso Dep. (Day 1) at 77:5-13. But Mr.
`
`Occhiogrosso provided no evidence to support his conclusory allegation that Samsung performed
`
`any of the Asserted Method Claims. Instead, for certain of these claims, Mr. Occhiogrosso alleges
`
`not that Samsung performs the step, but that the Accused Products merely include the capability
`
`of performing the step. Ex. 1, Ex. SAMSUNG-079, p. 9 (stating for method step 1[c] that
`
`
`
`
`
`). Thus, Mr. Occhiogrosso’s only possible basis
`
`for arguing that Samsung infringes the Asserted Method Claims is that Samsung sells the Accused
`
`Products that have the capability of performing the claimed method steps. Such an opinion, even
`
`if credible, is insufficient to support a finding that Samsung itself infringes the Asserted Method
`
`Claims because, as is well settled, “[m]ethod claims are ‘not directly infringed by the mere sale of
`
`-3-
`
`

`

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`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 7 of 20 PagelD #: 5883
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`an apparatus capable of performing the claimed process.’” Packet Intelligence LLC v. NetScout
`
`Sys., Inc., 965 F.3d 1299, 1314 (Fed. Cir. 2020) (quoting Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770,
`
`773 (Fed. Cir. 1993)).
`
`Further, Mr. Occhiogrosso failed to consider whether Samsung’s alleged performance of
`
`the Asserted Method Claimsoccurred in the United States as is required for infringement. N7P,
`
`Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1318 (Fed. Cir. 2005) (“We therefore hold that a
`
`process cannot be used ‘within’ the United States as required by section 271(a) unless each of the
`
`steps is performed within this country.”), abrogated on other grounds by IRIS Corp. v. Japan
`
`Airlines Corp., 769 F.3d 1359 (Fed. Cir. 2014); see also MeyerIntel. Props. Ltd. v. Bodum, Inc.,
`
`690 F.3d 1354, 1371 (Fed. Cir. 2012) (reversing grant of summary judgment of infringement on
`
`method claims where there was“no evidenceofdirect infringementin the record” because“direct
`
`infringement of a method claim requires that each of the claimed steps are performed within the
`
`United States” and there was no evidencethat testing occurred in the United); Finjan, Inc. v. Secure
`
`Computing Corp., 626 F.3d 1197, 1206 (Fed. Cir. 2010) (reversing denial of JMOL of
`
`noninfringement for method claims in view of lack of evidence that methods were performed in
`
`the United States). Mr. Occhiogrosso concededin deposition that his report contains no opinion
`
`on the location where Samsung allegedly performs the Asserted Method Claims:
`
`ree
`
`Ex. 2, Occhiogrosso Dep. (Day 1) at 77:20-23.
`
`It is thus impossible to determine whether the
`
`alleged acts Mr. Occhiogrosso considered—to the extent they occurred at all—happened in the
`
`Unitedtos
`EE100d, the evidence suggests that any use of the accused features
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`

`

`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 8 of 20 PageID #: 5884
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`that
`
`
`
`
`
` Accordingly, Mr.
`
`Occhiogrosso’s opinions concerning infringement of the Asserted Method Claims are unreliable
`
`and he should be precluded from testifying as to any such alleged infringement.
`
`B. Mr. Occhiogrosso Failed to Set Forth any Opinions regarding Contested
`Applications
`
`Mr. Occhiogrosso’s opening report reserves the right to supplement with respect to certain
`
`features for which various motions are pending (the “Contested Applications”), “including Smart
`
`OIS, Blur Background, Bixby Vision, Live Masks Track/Apply, Beauty Mode, and Portrait
`
`Mode.” Ex. 1, Occhiogrosso Report, ¶¶ 5, 45. Samsung has moved to dismiss GTP’s complaint,
`
`strike GTP’s infringement contentions and/or compel compliant contentions with respect to the
`
`Contested Applications, and has also moved for a protective order with respect to these features
`
`due to the fact that GTP did not sufficiently articulate an infringement theory with respect to the
`
`Contested Applications in its infringement contentions as required by the local rules. Dkt. Nos.
`
`23, 51, 84. The fact that Mr. Occhiogrosso is also unable to articulate a theory of infringement for
`
`the Contested Applications based on publicly available information as GTP was required to do in
`
`its infringement contentions, despite Mr. Occhiogrosso liberally relying on public documents for
`
`the seven accused features for which he does provide infringement opinions, further shows that
`
`GTP has no basis to allege the Contested Applications infringe the Asserted Claims.4
`
`Despite the fact that the Contested Applications are still the subject of pending motions,
`
`Mr. Occhiogrosso could nevertheless have provided opinions on those features. His assertion that
`
`
`4 The seven accused features for which Mr. Occhiogrosso provides opinions in his report, and
`which are not the subject of motion practice by the parties, are Air Gestures, Palm Solution,
`Smart Stay, Iris Recognition, Face Recognition, Intelligent Scan, and AR Emoji.
`
`-5-
`
`

`

`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 9 of 20 PageID #: 5885
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`Samsung did not provide any discovery on the Contested Applications is incorrect as shown by
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`GTP’s Final Infringement Contentions, which cited Samsung’s produced
`
`
`
` See, e.g., Ex. 8, Ex, A (‘924 Patent Final Infringement
`
`Contentions Chart), p. 4
`
`
`
` Regardless of how the Court
`
`rules on the pending motions on the Contested Applications, Mr. Occhiogrosso could have relied
`
`on produced source code and documents in addition to public evidence to provide an infringement
`
`opinion in his opening report and later seek to supplement his report to the extent permitted to
`
`incorporate any further discovery. See, e.g., Ex. 8 (‘431 Patent Final Infringement Contentions),
`
`pp. 16 and 17 citing to source code and public information. Opal Run, LLC v. C & A Mktg., Inc.,
`
`No. 2:16-CV-24-JRG-RSP, 2017 U.S. Dist. LEXIS 126522, at *6 (E.D. Tex. May 15, 2017)
`
`(striking infringement theories first introduced in expert reports when plaintiffs could have
`
`identified those theories in their infringement contentions based on publicly available
`
`information). Mr. Occhiogrosso failed to do so and even admitted that he did not bother to review
`
`the source code. Ex. 2, Occhiogrosso Dep. (Day 1) at 28:3-29:6, 32:9-20. Mr. Occhiogrosso
`
`should, therefore, be precluded from testifying as to the Contested Applications.
`
`C. Mr. Occhiogrosso Should be Precluded from Relying on or Testifying with
`Regard to any Document or Code Not Discussed in the Body of His Report
`
`In his “Materials Considered” disclosure in his opening report, Mr. Occhiogrosso lists
`
`“Samsung’s Document Production” and “Samsung’s Source Code.” Ex. 1, Ex. A (“Materials
`
`Considered”). During his deposition, however, Mr. Occhiogrosso admitted that he never reviewed
`
`Samsung’s produced source code and did not rely on it in forming his infringement opinions. Ex.
`
`2, Occhiogrosso Dep Tr. (Day 1) at 28:3-29:6, 32:9-20. Moreover, Samsung has produced over
`
`150,000 pages of documents, including financial information and
`
` a technical expert
`
`-6-
`
`

`

`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 10 of 20 PageID #: 5886
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`would not credibly rely on for proving infringement. Mr. Occhiogrosso cites to only a small
`
`fraction of Samsung’s document production in the body of his report.
`
`Mr. Occhiogrosso should not be allowed to freely provide opinions on documents he did
`
`not specifically cite in support of his opinions through a mere generic reference to “Samsung’s
`
`Document Production” in his materials considered. See ROY-G-BIV Corp., 63 F. Supp. 3d at 699
`
`(“Expert infringement reports may not introduce theories not previously set forth in infringement
`
`contentions.”) Mr. Occhiogrosso should be precluded from relying on or testifying with respect to
`
`Samsung’s source code or any documents not discussed in the body of his report.
`
`D. Mr. Occhiogrosso Should be Precluded from Providing New Infringement
`Theories that GTP Did Not Disclose in Its Infringement Contentions
`1.
`
`’431 Patent Claim 7 – Opinions as to Air Gestures, Palm Solution, and
`AR Emoji should be excluded
`
`GTP failed to identify any accused feature(s) with respect to the “means for controlling”
`
`limitation of Claim 7 of the ’431 Patent in GTP’s Initial Infringement Contentions. Ex. 9, April
`
`30, 2021 Disclosure of Asserted Claims and Infringement Contentions (“Initial Infringement
`
`Contentions”), “Claim Chart for ‘431 Patent,” pages 7-8. This is so despite GTP having agreed
`
`that the “means for controlling” limitation is a means-plus-function term. Dkt. No. 73-1, p. 6.
`
`Thus, GTP acknowledged that it had to both identify specific structure in the Accused Products
`
`and that such structure performs the claimed function. P.R. 3-1(c) (“for each element that such
`
`party contends is governed by 35 U.S.C. § 112 (¶ 6), the identity of the structure(s), act(s), or
`
`material(s) in the Accused Instrumentality that performs the claimed function”). In GTP’s Final
`
`Infringement Contentions, it added source code citations that purportedly relate to the features Iris
`
`Scan Unlock, Face ID Unlock, Intelligent Scan, and Smart Stay. Ex. 8, Ex. B, pp. 15-16. Its Final
`
`Infringement Contentions, however, still did not identify Air Gestures, Palm Solution, or AR
`
`Emoji for the “means for controlling” limitation of Claim 7.
`
`-7-
`
`

`

`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 11 of 20 PageID #: 5887
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`Mr. Occhiogrosso now identifies each of the seven accused features as performing the
`
`claimed function, despite GTP having never previously identified Air Gestures, Palm Solution, or
`
`AR Emoji, in any version of its infringement contentions. Ex. 1, Ex. SAMSUNG-431, p. 29. Mr.
`
`Occhiogrosso’s opinions as to Air Gestures, Palm Solution, and AR Emoji for Claim 7 of the ’431
`
`Patent should therefore be excluded because such opinions constitute new infringement theories
`
`that were not previously disclosed in GTP’s infringement contentions.
`
`2.
`
`’431 Patent Claim 19 – All opinions should be excluded
`
`In its Initial Infringement Contentions, GTP identified only Face ID Unlock as an accused
`
`feature allegedly infringing Claim 19 of the ’431 Patent. Ex. 9 (Initial Infringement Contentions),
`
`“Claim Chart
`
`for
`
`’431 Patent”, p. 18
`
`(citing https://www.samsung.com/us/support/
`
`answer/ANS00062630/, which describes “us[ing] the Facial recognition feature to unlock your
`
`phone with your face”). GTP never identified AR Emoji as an element of its infringement theory
`
`for this claim, even in its Final Infringement Contentions, despite having identified AR Emoji for
`
`several other Asserted Claims. Ex. 8 (“Exhibit B – 431 Chart”), pp. 34-36. However, Mr.
`
`Occhiogrosso in his opening report now relies solely on AR Emoji, and no other feature (not even
`
`the Face ID Unlock feature identified in GTP’s Initial Infringement Contentions) as the basis of
`
`his opinion regarding Claim 19 of the ‘431 Patent, despite the fact that GTP never previously
`
`identified this feature for this claim in its infringement contentions. Ex. 1, Ex. SAMSUNG-431 at
`
`53. For this reason alone, Mr. Occhiogrosso should be precluded from providing any opinion
`
`regarding this claim at trial. The impropriety of this change in opinion is further highlighted by
`
`the fact that Mr. Occhiogrosso relies on a public webpage for evidence of infringement regarding
`
`AR Emoji, which GTP could have easily identified in its infringement contentions if it intended
`
`its expert to rely on this feature. Id. (citing https://www.samsung.com/ hk_en/support/mobile-
`
`devices/how-do-i-use-ar-emoji-feature-on-galaxy-fold/). Therefore, Mr. Occhiogrosso’s opinion
`
`-8-
`
`

`

`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 12 of 20 PageID #: 5888
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`as to Claim 19 of the ’431 Patent should be excluded because it is a new infringement theory that
`
`was not previously disclosed in GTP’s infringement contentions.
`
`3.
`
`’431 Patent Claim 27 – All opinions should be excluded
`
`In its Initial Infringement Contentions served April 29, 2021, GTP identified only the
`
`Google Motion Sense feature in Google Pixel devices as infringing Claim 27 of the ’431 Patent.
`
`Ex. 9 (Initial Infringement Contentions), “Claim Chart for ’431 Patent”, p. 21. After Samsung
`
`notified GTP that the webpages it cited in support of its allegations for this claim clearly disclosed
`
`that the feature was developed by Google for Google Pixel phones only, and was not a feature on
`
`Samsung devices, GTP responded that it would abandon its infringement allegations with respect
`
`to Motion Sense. Ex. 10 (May 19, 2020 Letter to F. Williams from C. Kennerly) at 1; Ex. 11 (May
`
`25, 2021 Letter to C. Kennerly from F. Williams at 1) (“[W]e agree that the Motion Sense and
`
`Smile Shutter features, and the Galaxy M Series product, should not have been included and should
`
`no longer be considered part of GTP’s operative infringement contentions.”). Thus, GTP dropped
`
`the only basis it had for alleging infringement of Claim 27 of the ’431 Patent. Nevertheless, in its
`
`Final Infringement Contentions served September 20, 2021, GTP continued to allege infringement
`
`of Claim 27 based solely on the same Motion Sense technology that it previously agreed to drop.
`
`Ex. 8 (“Exhibit B – 431 Chart”), p. 41.
`
`Now, through its expert Mr. Occhiogrosso, GTP alleges infringement of Claim 27 based
`
`on an AR Emoji SDK provided to third parties for developing their own applications. Ex. 1,
`
`Occhiogrosso Report) Ex. SAMSUNG-431, p. 65 (citing https://developer.samsung.com/
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`codelab/ar-emoji/game-character.html). GTP never previously identified AR Emoji as infringing
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`Claim 27, despite having identified AR Emoji for several other Asserted Claims. Further, GTP
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`never identified in its infringement contentions the specific AR Emoji SDK for creating game
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`characters for third party applications that it now relies on. This despite the fact that Mr.
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`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 13 of 20 PageID #: 5889
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`Occhiogrosso relies on a public website and that such information was thus available to GTP when
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`it served its Initial Infringement Contentions and each of its supplemental contentions.
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`GTP should not be allowed to inject a new infringement theory into the case where it has
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`previously dropped its sole basis for infringement and has never identified the functionality it now
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`relies on for infringement, despite Mr. Occhiogrosso’s cited evidence for such functionality having
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`been publicly available. Mr. Occhiogrosso’s opinions as to Claim 27 of the ’431 Patent should be
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`excluded accordingly.
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`4.
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`’431 Patent Claim 28 – All opinions should be excluded
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`In its Initial Infringement Contentions, GTP alleged that the cameras recited in each of the
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`Accused Products acquire a picture of the user of the handheld device. Ex. 8 (Final Infringement
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`Contentions) “Claim Chart for ’431 Patent”, p. 22. Despite having identified specific features for
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`other claims, GTP identified no software features in support of its infringement allegations for
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`Claim 28 of the ‘431 Patent. In its Final Infringement Contentions, GTP identified a laundry list
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`of source code files supposedly relating to infringement of this claim, none of which apparently
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`relate to Palm Solution. Ex. 8 (“Exhibit B – 431 Chart”), pp. 42-43.
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`Now, in his opening report, Mr. Occhiogrosso alleges that Claim 28 is infringed because
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`the Palm Solution feature causes the camera to acquire an image of the user, which occurs in
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`response to detecting the user’s palm. Ex. 1, Ex. SAMSUNG-431, p. 66. GTP never previously
`
`identified Palm Solution for Claim 28 in its infringement contentions despite having identified it
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`for other claims, leaving Samsung to believe that GTP was not accusing Palm Solution for Claim
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`28, but rather identifying only the basic ability of the camera to take a picture. Indeed, information
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`that Palm Solution takes a picture in response to the presence of the user’s palm was publicly
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`available to GTP and should have been included in its Initial Infringement Contentions, yet GTP
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`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 14 of 20 PageID #: 5890
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`did not even specifically identify this feature in its Final Infringement Contentions. Therefore,
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`Mr. Occhiogrosso’s opinions as to Claim 28 of the ’431 Patent should be excluded.
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`5.
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`’924 Patent Claim 10 – All opinions should be excluded
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`In its Initial Infringement Contentions, GTP identified the following features in relation to
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`its infringement allegations for Claim 10 of the ’924 Patent: Smile Shutter, Face Location, Beauty
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`Mode, Smile Shot, Face ID Unlock, Air Gestures, and Palm Solution. Ex. 9 (Initial Infringement
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`Contentions), “Claim Chart for ’924 Patent”, pp. 7-8. Mr. Occhiogrosso now alleges infringement
`
`of Claim 10 based on mere generic
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`
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` Ex. 1, Ex. SAMSUNG-924, p. 27. GTP did not previously disclose an
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`infringement theory for Claim 10 based on generic recognition of objects such as faces by the rear-
`
`facing camera. Mr. Occhiogrosso’s opinions as to Claim 10 of the ’924 Patent should therefore
`
`be excluded.
`
`6.
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`’924 Patent Claim 12 – All opinions should be excluded
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`In its Initial Infringement Contentions, GTP identified the following features for Claim 12
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`of the ’924 Patent: Tracking Autofocus, Smart OIS, Blur Background, Adjust Blur, Face Location,
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`Active Shape Connection, Bixby Vision, Control Exposure Based on Location, Portrait Mode,
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`Smile Shot, Face ID Unlock, Air Gestures, and Palm Solution. Ex. 9 (Initial Infringement
`
`Contentions) “Claim Chart for ’924 Patent”, pp. 8-9. Mr. Occhiogrosso now alleges infringement
`
`of Claim 12 based on mere generic “functionality for recognizing objects based on the rear-facing
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`camera, such as faces, in which a reference image is used to later identify the face.” Ex. 1, Ex.
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`SAMSUNG-924, p. 31. GTP did not previously disclose an infringement theory for Claim 10
`
`based on generic face recognition using the rear-facing camera in which a reference image is used
`
`to later identify the face. Mr. Occhiogrosso’s opinions as to Claim 12 of the ’924 Patent should
`
`therefore be excluded.
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`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 15 of 20 PageID #: 5891
`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 15 of 20 PagelD #: 5891
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`7.
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`°079 Patent Claim 30 — All opinions should be excluded
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`In its Initial Infringement Contentions and Final Infringement Contentions, GTP asserted
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`that Samsung infringed Claim 30 of the ’079 Patent becausePo
`
`a<i c::
`
`°079 Patent”, p. 15. Now,in his opening report, Mr. Occhiogrosso alleges the physical buttons on
`
`the Accused Products as well as the display itself, not the keyboard that is graphically displayed,
`
`are the claimed “keypad.” Ex. 1, Ex. SAMSUNG-079,p. 51, referring to the analysis for claim
`
`cement 9a} on page25
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`Pe These infringement theories were never previously
`
`disclosed in GTP’s contentions. Mr. Occhiogrosso’s opinions as to Claim 30 of the ’079 Patent
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`should therefore be excluded.
`
`8.
`
`°949 Patent Claim 13 — All opinions should be excluded
`
`In its Final Infrmgement Contentions, GTP alleged that Claim 13 of the °949 Patent was
`
`met by the Accused Products because:
`
`
`
`Ex. 8 (“Exhibit B — ’431 Chart”), p. 17. The “Camera(s)” GTP identified in the infringement
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`contentions’ coverpleading (Ex. 8) are the “Front Camera” and “Rear Camera”for each Accused
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`Case 2:21-cv-00040-JRG Document 146 Filed 12/03/21 Page 16 of 20 PageID #: 5892
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`Product. Thus, GTP originally contended that the front camera and rear camera were each the
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`claimed “forward facing portion” that encompasses a digital camera and a separate sensor.
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`In his opening report, Mr. Occhiogrosso now alleges the “front-facing side” of the device
`
`is the “forward facing portion” and encompasses a digital camera that itself encompasses a sensor.
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`Ex. 1, Ex. SAMSUNG-949, p. 3. According to Mr. Occhiogrosso, the same digital camera is used
`
`to both detect the alleged gesture and to capture an image, and thus the same digital camera is both
`
`the “digital camera” and the “sensor.” Id. GTP never previously disclosed an infringement theory
`
`where the claimed sensor is the sensor encompassed within the digital camera that is used to both
`
`detect the gesture and capture an image in response to the gesture. Mr. Occhiogrosso’s opinions
`
`as to Claim 13 of the ’949 Patent should therefore be excluded.
`
`E. Mr. Occhiogrosso Opinions Regarding “Gestures” Should be Excluded for
`Contradicting the Co