Case 2:21-cv-00040-JRG Document 157 Filed 12/16/21 Page 1 of 12 PageID #: 6140
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
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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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`§
`§
`§
`§
`§
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`§
`§
`§
`§
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`CIVIL ACTION NO. 2:21-cv-00041-JRG
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`JURY TRIAL DEMANDED
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`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS AMERICA, INC.’S MOTION TO STAY PENDING
`INTER PARTES REVIEW AND EX PARTE REEXAMINATION PROCEEDINGS
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`

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`Case 2:21-cv-00040-JRG Document 157 Filed 12/16/21 Page 2 of 12 PageID #: 6141
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`I.
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`INTRODUCTION
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`As of December 13, 2021, the PTAB has instituted Inter Partes Review (“IPR”) as to all
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`claims of the four Patents-in-Suit, and the USPTO has instituted Ex Parte Reexamination (“EPR”)
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`as to all asserted claims of two Patents-in-Suit, with EPR institution decisions on the other two
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`Patents-in-Suit expected in the coming weeks. Defendants Samsung Electronics Co., Ltd. and
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`Samsung Electronics America, Inc. (together, “Samsung”) respectfully request that the Court stay
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`this case pending the conclusion of these IPR and EPR proceedings, which present meritorious
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`challenges to the validity of every claim asserted by Plaintiff Gesture Technology Partners, LLC
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`(“GTP”). See 35 U.S.C. §§ 314(b), 316(a)(11); 37 C.F.R. 42.107. All three of the factors this
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`Court typically considers favor granting the stay requested here.
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`First, GTP will not suffer undue prejudice from a stay. Courts consistently hold that the
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`delay inherent in staying a case for the duration of an IPR or EPR proceeding does not constitute
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`undue prejudice, especially where plaintiff does not practice the patents-in-suit. Here, GTP does
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`not and has never made or sold a product practicing any of the Patents-in-Suit (nor any product
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`whatsoever), GTP does not and has never competed with Samsung, and all four of the Patents-in-
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`Suit expired before this case was filed. Moreover, GTP’s delay in filing the present action—seven
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`years after it claims to have become concerned about Samsung’s alleged infringement—belies any
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`purported prejudice GTP may claim here.
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`Second, Samsung has demonstrated diligence in timely filing this motion, doing so within
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`a week after the PTAB issued its decision instituting the IPR as to the fourth and final Patent-in-
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`Suit. Although trial is less than three months away, the parties will expend substantial resources
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`in the immediate future and over the coming months on their pretrial, trial, and post-trial efforts,
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`both in the district court and potentially on appeal, all of which would very likely be conserved by
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`staying the case until the IPRs and EPRs reach their conclusions.
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`-1-
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`Case 2:21-cv-00040-JRG Document 157 Filed 12/16/21 Page 3 of 12 PageID #: 6142
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`Third, a stay will very likely simplify the issues before this Court because the PTAB has
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`instituted IPRs as to all claims asserted in this case across all four Patents-in-Suit. Further, the
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`USPTO has already instituted EPRs as to two of the four Patents-in-Suit, with institution decisions
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`as to the other two Patents-in-Suit expected in the coming weeks. Together, these IPRs and EPRs
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`present multiple meritorious challenges to every claim asserted in this case and are very likely to
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`invalidate all of those claims. Moreover, because the primary prior art references in the IPRs are
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`different from those in the EPRs, every asserted claim is likely to be declared invalid on multiple
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`independent grounds. In the unlikely event that any asserted claims survive these challenges the
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`issues in the case very likely will, at a minimum, be greatly simplified.
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`Accordingly, as all three governing factors weigh in favor of granting a stay here, Samsung
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`respectfully requests that the Court stay this case in its entirety until final non-appealable decisions
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`issue with respect to all of the applicable IPRs and EPRs.
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`II.
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`BACKGROUND
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`GTP brought this action on February 4, 2021, alleging Samsung infringes U.S. Patent Nos.
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`8,194,924 (“’924 Patent”); 7,933,431 (“’431 Patent”); 8,878,949 (“’949 Patent”); and 8,553,079
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`(“’079 Patent”) (together, “Patents-in-Suit”). Dkt. 1. GTP is currently asserting Claims 1–7, 10,
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`12, and 14 of the ’924 Patent; Claims 1–3, 6–9, 11–22, 25–28, and 30 of the ’431 Patent, Claims
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`13–14, 16, and 18 of the ’949 Patent; and Claims 1–6, 8–9, 11, 14–15, 19, 21–25, and 30 of the
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`’079 Patent. Dkt. 136 at 5, 11, 16, 23. The Court held a claim construction hearing on September
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`21 and issued its Claim Construction Order on October 12.
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`On November 29, 2021, the PTAB granted institution of Apple’s IPR Petition as to Claims
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`1–30 of the ’079 Patent. Ex. 1 (IPR2021-00922). On November 22, the PTAB granted institution
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`of Unified Patents’ IPR Petition as to Claims 7–13 of the ’431 Patent, Ex. 2 (IPR2021-00917), and
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`on December 6, the PTAB granted institution of Apple’s IPR Petition as to Claims 1–31 of the
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`-2-
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`Case 2:21-cv-00040-JRG Document 157 Filed 12/16/21 Page 4 of 12 PageID #: 6143
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`’431 Patent, Ex. 3 (IPR2021-00920). Further on December 6, the PTAB granted institution of
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`Apple’s IPR Petition as to Claims 1–14 of the ’924 Patent. Ex. 4 (IPR2021-00923). On December
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`13, the PTAB granted institution of Apple’s IPR Petition as to Claims 1–18 of the ’949 Patent.
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`Ex. 5 (IPR2021-00921). In total, the PTAB granted institution of IPR Petitions as to all claims of
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`the four Patents-in-Suit (including two petitions as to Claims 7-13 of the ‘431 Patent).
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`Following the Claim Construction Order, on November 11, 2021, Samsung filed four EPR
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`Requests presenting substantial new questions of patentability (“SNQs”) as to the asserted claims
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`of the Patents-in-Suit: (1) fourteen SNQs for the ’924 Patent, (2) eight SNQs for the ’431 Patent,
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`(3) two SNQs for the ’949 Patent; and (4) six SNQs for the ’079 Patent. See Ex. 6 (’924 EPR
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`Request); Ex. 7 (’431 EPR Request); Ex. 8 (’949 EPR Request); Ex. 9 (’079 EPR Request). On
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`December 2, the USPTO ordered reexamination of the ’924 and ’949 Patents, finding Samsung’s
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`EPR Requests raised fourteen SNQs as to Claims 1–14 of the ’924 Patent, and two SNQs as to
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`Claims 1–18 of the ’949 Patent. Ex. 10 at 2 (Order Granting Request for Ex Parte Reexamination,
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`Control Number 90/014,902); Ex. 11 at 2 (Order Granting Request for Ex Parte Reexamination,
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`Control Number 90/014,903). See also 35 U.S.C. § 302; 37 C.F.R. §§ 1.515(a), 1.525. Samsung
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`expects USPTO decisions on the other two EPR Requests, for the ’431 and ’079 Patents, in the
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`coming weeks and will notify the Court when those issue.
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`Fact discovery closed October 15, 2021, expert discovery closed November 30, and the
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`parties filed dispositive motions and motions to strike (including Daubert motions) on December
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`1. Briefing on those motions will not be completed until January 10, 2022 (assuming the parties
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`file replies and sur-replies as permitted). Numerous other motions are pending. The parties will
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`begin serving pretrial disclosures on December 20, culminating with objections to rebuttal pretrial
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`disclosures due January 10, 2022. Motions in limine are also due January 10. The Joint Pretrial
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`-3-
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`Case 2:21-cv-00040-JRG Document 157 Filed 12/16/21 Page 5 of 12 PageID #: 6144
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`Order and accompanying filings are due January 24, the Pretrial Conference is set for January 31,
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`and Jury Selection is set for March 7.
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`III. LEGAL STANDARD
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`The Court “has the inherent power to control its own docket, including the power to stay
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`proceedings before it.” Ericsson Inc. v. TCL Commc’n Tech. Holdings, Ltd., No. 2:15-CV-00011-
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`RSP, 2016 WL 1162162, at *1 (E.D. Tex. Mar. 23, 2016). In deciding how to manage its docket,
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`a court “must weigh competing interests and maintain an even balance.” Customedia Techs., LLC
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`v. Dish Network Corp., No. 2:16-CV-129-JRG, Dkt. No. 187, slip op. at 1 (E.D. Tex. Aug. 9, 2017)
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`(citing Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936)). In deciding whether to stay a case
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`pending IPR and EPR proceedings, this Court considers “(1) whether the stay will unduly prejudice
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`the nonmoving party, (2) whether the proceedings before the court have reached an advanced stage,
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`including whether discovery is complete and a trial date has been set, and (3) whether the stay will
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`likely result in simplifying the case before the court.” NFC Tech. LLC v. HTC Am., Inc., No. 2:13-
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`CV-1058-WCB, 2015 WL 1069111, at *2 (E.D. Tex. Mar. 11, 2015)) (discussing factors for IPR);
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`see also AGIS Software Dev. LLC v. Google LLC, No. 2:19-CV-00359-JRG, 2021 WL 465424, at
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`*2 (E.D. Tex. Feb. 9, 2021) (discussing factors for EPR). “Based on those factors, courts
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`determine whether the benefits of a stay outweigh the inherent costs of postponing resolution of
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`the litigation.” NFC Tech., 2015 WL 1069111, at *2. A stay pending IPR is especially justified
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`where the outcome of the proceedings will likely simplify the case by helping the court determine
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`validity issues or by eliminating the need to try infringement issues. Ericsson, 2016 WL 1162162,
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`at *1 (citing NFC Tech., 2015 WL 1069111, at *2).
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`IV. ARGUMENT
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`
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`The instituted IPR and EPR proceedings present meritorious challenges to the validity of
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`every claim asserted in this case, and institution decisions expected in the coming weeks are likely
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`-4-
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`Case 2:21-cv-00040-JRG Document 157 Filed 12/16/21 Page 6 of 12 PageID #: 6145
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`to compound those challenges. All three factors this Court typically considers weigh in favor of
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`staying this case until those proceedings have concluded. First, GTP will not suffer any undue
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`prejudice from a stay. Second, a stay will very likely conserve significant resources of the Court
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`and the parties. Third, a stay will very likely simplify the issues before the Court. Accordingly,
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`this case should be stayed in its entirety pending conclusion of the IPRs and EPRs directed to the
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`Patents-in-Suit.
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`A.
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`A Stay Will Not Unduly Prejudice GTP
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`GTP will not suffer undue prejudice, favoring a stay. “[T]he mere fact of a delay alone
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`does not constitute prejudice sufficient to deny a request for stay.” E-Watch, Inc. v. Lorex Can.,
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`Inc., No. CIV.A. H-12-3314, 2013 WL 5425298, at *2 (S.D. Tex. Sept. 26, 2013). Instead, the
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`Federal Circuit has held that the question of “whether the patentee will be unduly prejudiced by a
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`stay . . . focuses on the patentee’s need for an expeditious resolution of its claim.” VirtualAgility
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`Inc. v. Salesforce.com, Inc., 759 F.3d 1307, 1318 (Fed. Cir. 2014) (emphasis in original). The lack
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`of undue prejudice is especially evident here because GTP does not and has never made or sold a
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`product practicing any of the Patents-in-Suit (nor any product whatsoever), GTP does not and has
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`never competed with Samsung, and all four Patents-in-Suit expired before this case was filed so
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`there is no concern of ongoing infringement. In the event GTP ultimately proves an entitlement
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`to past damages, a “stay will not diminish” those damages but “only delays realization of those
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`damages.” Id. As this Court has held, “mere delay in collecting those damages does not constitute
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`undue prejudice.” Cellular Commc’ns Equip., LLC v. Samsung Elecs. Co., No. 6:14-cv-759, 2015
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`WL 11143485, at *2 (E.D. Tex. Dec. 16, 2015) (citation omitted).
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`In contrast, Samsung would be prejudiced if the case is not stayed. Samsung will continue
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`to incur the burden and expense of defending infringement allegations on patent claims that may
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`and likely will be invalidated in one or more of the pending IPRs and/or EPRs. See infra Section
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`-5-
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`Case 2:21-cv-00040-JRG Document 157 Filed 12/16/21 Page 7 of 12 PageID #: 6146
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`IV.C. The extent of that burden and expense will only increase in the coming months as Samsung
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`is forced to ramp up for its pretrial, trial, and post-trial efforts. The IPRs (and EPRs), in contrast,
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`will “limit unnecessary and counterproductive litigation costs.” MCM Portfolio LLC v. Hewlett-
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`Packard Co., 812 F.3d 1284, 1290–91 (Fed. Cir. 2015) (quoting H.R. Rep. No. 112-98, 2011
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`U.S.C.C.A.N. 67, 69, at 39–40). Samsung has demonstrated diligence, promptly filing this motion
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`as soon as IPR Petitions had been instituted on all four Patents-in-Suit, the last of which occurred
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`on December 13, 2021. Ex. 5 (IPR2021-00921).
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`GTP’s own delay in filing the present action belies any purported prejudice. GTP claims
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`that it became concerned about Samsung’s alleged infringement in 2014, Ex. 12 (Pryor Depo Day
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`1), at 61:5–63:3, but never contacted Samsung about alleged infringement, id. at 81:19–84:20.
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`GTP instead waited seven years to file this action in February 2021, after all four Patents-in-Suit
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`had already expired. Dkt. 1. These facts undermine any assertion of prejudice to GTP, and the
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`absence of undue prejudice weighs in favor of a stay.
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`B.
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`A Stay Will Conserve Significant Resources
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`Although this case is at an advanced stage, absent a stay the parties and the Court will be
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`required to expend significant additional resources in the immediate future and over the coming
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`months on pretrial, trial, and post-trial efforts, both in the district court and potentially on appeal.
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`Jury selection will not occur until March 7, 2022, nearly three months from now. Substantial work
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`remains for the parties and the Court with respect to dispositive/Daubert motion briefing, pretrial
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`disclosures, motions in limine, the Joint Pretrial Order and accompanying filings, and the Pretrial
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`Conference, not to mention the tremendous amount of work remaining for trial preparation, the
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`trial itself, and post-trial activities, potentially including appeal.
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`This Court has stayed cases at similar stages where an IPR had been instituted, including
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`less than one month before trial in both Image Processing Techs., LLC v. Samsung Electronics
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`-6-
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`Case 2:21-cv-00040-JRG Document 157 Filed 12/16/21 Page 8 of 12 PageID #: 6147
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`Co., No. 2:16-cv-505- JRG, 2017 WL 7051628, at *1–2 (E.D. Tex. Oct. 25, 2017), and Customedia
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`Techs, No. 2:16-cv-129-JRG. Similarly, in AGIS Software, this Court granted a stay pending EPR
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`and recognized that while it was very late in the case—with discovery complete, pretrial briefing
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`submitted, and jury selection pending—there remained significant party and court resources to be
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`expended. AGIS, 2021 WL 465424, at *3. Here, it is apparent that if the Court stays this case and
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`the IPRs and/or EPRs invalidate all of even the bulk of the asserted claims of the Patents-in-Suit,
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`as is highly likely, the Court and parties will have saved significant time, costs, and other resources.
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`See id. (If “the case were to proceed to trial on the current claims, as is, there is a serious risk of
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`wasted resources as between both the parties and the Court.”)
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`C.
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`The IPR and EPR Proceedings Will Simplify the Issues
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`Invalidation of all or even most of the asserted claims of the Patents-in-Suit in the IPRs
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`and/or EPRs will simplify or eliminate the issues before the Court. “[T]he most important factor
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`bearing on whether to grant a stay in this case is the prospect that the inter partes review proceeding
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`will result in simplification of the issues before the Court.” NFC Tech., 2015 WL 1069111, at *4.
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`Similarly, a stay is warranted when there is a “significant likelihood that the outcome of the [ex
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`parte] reexamination proceeding will streamline the scope of th[e] case to an appreciable extent if
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`not dispose of it entirely.” Veraseal LLC v. Wal-Mart Stores, Inc., No. 2:17-cv-00527-JRG, 2018
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`WL 2183235, at *2 (E.D. Tex. May 11, 2018). Here, the PTAB instituted IPRs as to all asserted
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`claims across all four Patents-in-Suit. Further, the USPTO has already instituted EPRs as to two
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`of the four Patents-in-Suit, with institution decisions as to the other two Patents-in-Suit expected
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`in the coming weeks. Moreover, because the primary prior art references in the IPRs are different
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`from those in the EPRs, every asserted claim is likely to be found invalid on multiple independent
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`grounds. Even in the unlikely event that any asserted claims survive this gauntlet, the issues before
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`the Court are very likely to be greatly simplified. AGIS, 2021 WL 465424, at *2 (collecting cases)
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`-7-
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`Case 2:21-cv-00040-JRG Document 157 Filed 12/16/21 Page 9 of 12 PageID #: 6148
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`(“[W]here the PTAB has instituted IPR proceedings or the PTO has granted EPR’s as to all claims
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`of all asserted patents, this Court has . . . routinely stayed cases because the Court there does not
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`retain before it any intact (as originally asserted) claims that are ready to move forward toward
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`trial. In the context where all claims have been instituted upon, the Court understands that all the
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`claims may potentially be modified, dropped, or canceled in light of such parallel proceedings.”)
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`(emphasis in original).
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`Statistically, it is undeniable that the IPRs and/or EPRs are likely to invalidate most if not
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`all asserted claims of the Patents-in-Suit. According to USPTO statistics, from September 2012
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`to September 2020, 62% of Final Written Decisions (“FWDs”) in IPRs found all claims invalid,
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`and 18% of FWDs found some claims invalid. See Ex. 13 (PTAB Trial Statistics September 2020)
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`at 11. In total, 80% of FWDs have invalidated some or all challenged claims. The latest USPTO
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`statistics show essentially the same thing; from October 1, 2020 to September 30, 2021, 78% of
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`FWDs invalidated some or all challenges claims. See Ex. 15 (PTAB Trial Statistics FY21 End of
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`Year Outcome Roundup) at 15. Similarly, USPTO statistics show that 79% of EPRs filed by third
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`party requesters result in invalidation of all claims or amendments to the claims. Ex. 14, at 2 (Ex
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`Parte Reexamination Filing Data, last updated September 30, 2020). The USPTO already granted
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`Samsung’s EPR Requests challenging the ’924 and ’949 Patents, determining that they presented
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`fourteen substantial new questions of patentability as to every claim of the ’924 Patent, and two
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`substantial new questions of patentability as to every claim of the ’949 Patent. See supra Section
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`II. There is no reason to expect anything different when the USPTO soon issues its decisions on
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`Samsung’s EPR Requests challenging the ’431 and ’079 Patents. Moreover, claim amendments
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`are not possible here given that the Patents-in-Suit are all expired. Thus, it is highly likely that
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`-8-
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`Case 2:21-cv-00040-JRG Document 157 Filed 12/16/21 Page 10 of 12 PageID #: 6149
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`most if not all asserted claims of the Patents-in-Suit will be invalidated by the IPRs and/or EPRs,
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`greatly simplifying the issues before the Court.
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`Although Samsung is not a party to the IPRs and thus will not be subject to estoppel in the
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`unlikely event any asserted claims survive, the high likelihood of simplification as a consequence
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`of claim invalidation nonetheless warrants a stay. Courts in this district have granted a motion to
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`stay where estoppel would not apply to the defendant:
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`Spa argues it will suffer prejudice because the reexamination is ex
`parte, meaning VeriFone will not be estopped from relitigating
`validity of the patents at trial after reexamination. … Ultimately,
`while Spa will suffer some prejudice because of the ex parte
`proceeding, the hardship is balanced by the many other factors
`allaying the prejudice in granting the stay discussed throughout this
`order, particularly
`the conservation of resources, potential
`simplification of the issues, and the presence of reexamination
`procedures ensuring as rapid a process as possible since the ‘862
`patent is involved in litigation. Spa is unlikely to suffer any undue
`prejudice if a stay is granted, and therefore the first factor weighs
`neutrally.
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`Spa Syspatronic, AG v. Verifone, Inc., No. CIV.A. 2:07-CV-416, 2008 WL 1886020 *2 (E.D. Tex.
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`Apr. 25, 2008) (emphasis added). See also Scorpcast, LLC v. Boutique Media, No. 2:20-CV-
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`00128-JRG-RSP, 2021 WL 3514751 at *3 (E.D. Tex. June 8, 2021) (finding PTAB’s institution
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`of IPR based on multiple grounds, which “in essence, indicated that the asserted claims are likely
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`unpatentable,” to be a factor supporting stay in addition to defendant’s agreement to be bound to
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`the PTAB’s decision). The inapplicability of estoppel here does not change the fact that the IPRs
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`(and the EPRs as well) are very likely to result in significant simplification.
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`“A stay is particularly justified when the outcome of a PTO proceeding is likely to assist
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`the court in determining patent validity or eliminate the need to try infringement issues.” Ericsson,
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`2016 WL 1162162, at *1 (quotations omitted). Here, resolution of the IPRs and EPRs will very
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`likely simplify the issues in the case at least because any claim cancelled during those proceedings
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`-9-
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`Case 2:21-cv-00040-JRG Document 157 Filed 12/16/21 Page 11 of 12 PageID #: 6150
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`is rendered void ab initio. See Fresenius USA, Inc. v. Baxter Int’l, Inc., 721 F.3d 1330, 1346 (Fed.
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`Cir. 2013). Accordingly, the simplification of issues factor also favors a stay.
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`V.
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`CONCLUSION
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`For the foregoing reasons, Samsung respectfully requests that the Court grant its motion to
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`stay this case in its entirety until final non-appealable decisions have issued in Inter Partes Review
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`and Ex Parte Reexamination proceedings directed to the Patents-in-Suit.
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`
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`DATED: December 16, 2021
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`Respectfully submitted,
`
`
`By: /s/ Christopher W. Kennerly
`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 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
`
`
`-10-
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`Case 2:21-cv-00040-JRG Document 157 Filed 12/16/21 Page 12 of 12 PageID #: 6151
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`Robert Laurenzi
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`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.
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`CERTIFICATE OF CONFERENCE
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`Pursuant to Local Rules CV-7(h) and (i), on December 16, 2021 counsel for the Defendants
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`and Plaintiff made a good faith attempt to resolve the matters raised by this motion. No agreement
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`could be reached. Plaintiff stated that it opposes the relief requested by this motion. Thus, these
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`discussions have conclusively ended in an impasse and leave an open issue for the Court to resolve.
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`
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`CERTIFICATE OF SERVICE
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`
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`I certify that a true and correct copy of the foregoing document was filed electronically in
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`
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`compliance with Local Rule CV-5 on December 16, 2021. As of this date, all counsel of record
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`had consented to electronic service and are being served with a copy of this document through the
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`Court’s CM/ECF system under Local Rule CV-5(a)(3)(A).
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
`
`
`
`-11-
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`