Case 2:21-cv-00040-JRG Document 180 Filed 12/30/21 Page 1 of 8 PageID #: 9109
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVSION
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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,
`
`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’ REPLY IN SUPPORT OF THEIR DAUBERT MOTION TO
`PRECLUDE THE OPINIONS AND TESTIMONY OF PLAINTIFF’S SURVEY
`EXPERT ANDREAS GROEHN
`
`
`-1-
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`

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`Case 2:21-cv-00040-JRG Document 180 Filed 12/30/21 Page 2 of 8 PageID #: 9110
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`I.
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`INTRODUCTION
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`An “independently commissioned” survey can go wrong when those commissioning the
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`survey overstep and influence its reliability. That happened here. GTP admits its counsel directed
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`Dr. Groehn to test
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`.1 Opp. at 7. But these features reflect GTP’s rejected
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`claim construction positions and do not relate to the Patents-in-Suit. GTP further admits that Dr.
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`Groehn’s 2021 survey tested these “patented features” only in 2021 smartphones. Opp. at 5. The
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`survey thus calculated purported consumer preferences wholly outside the 20142020 period of
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`alleged infringement. The survey was not “tied to the facts of the case.” Mot. at 6-12.
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`Making matters worse, GTP’s overreach yielded a report with “irrational results” that will
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`unfairly prejudice Samsung at trial. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595
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`(1993) (considering Rule 403). The Groehn Report concluded that just two features—
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`—accounted for
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` of Samsung’s total sales of Accused Products, and
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`of Samsung’s total profit on those sales. When asked why his survey yielded these facially
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`absurd results, Dr. Groehn testified that
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` Ex. M, Groehn Tr. at 202:15203:3
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`. Whether it was a problem with
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` or the fact that half of the
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`survey attributes were “patented features,” Mot. at 13-15, Dr. Groehn’s survey and related analysis
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`were doomed from the start and GTP cannot “fix the underlying issue.” Compare Earl v. Boeing
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`Co., No. 4:19-cv-507, 2021 WL 3140545, at *5 (E.D. Tex. July 26, 2021). The Groehn Report is
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`unreliable and prejudicial, and should be excluded.
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`1 GTP still has not attempted to clarify what Samsung smartphone feature allegedly corresponds
`to
` See Mot. at 4 n.3.
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`-1-
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`

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`Case 2:21-cv-00040-JRG Document 180 Filed 12/30/21 Page 3 of 8 PageID #: 9111
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`II.
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`ARGUMENT
`A.
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`The Groehn Survey Did Not Measure Consumer Preferences Tied to the Date
`of Alleged Infringement
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`A 2021 study cannot offer reliable information on consumer behavior from years earlier,
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`i.e., 20142020, the period of alleged infringement. See Saavedra v. Eli Lilly & Co., No. 2:12-cv-
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`9366, 2014 WL 7338930, at *6 (C.D. Cal. Dec. 18, 2014). For example, in Saavedra, the court
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`excluded a conjoint survey that sought to apply consumer preferences in 2014 to the preceding
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`ten-year period (i.e., 20042014). The court noted that “consumers have changed,” and cited a
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`handful of changes in the marketplace that “common sense tells [us] are potentially significant to
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`consumer valuation,” e.g., consumer price sensitivity, new competitive entries, etc. Id.2
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`Saavedra confirmed what the law requires—a nexus between damages evidence and the
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`time of alleged infringement. Mot. at 7. It is axiomatic that conjoint survey analysis must conform
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`to the law of patent damages. Compare Opp. at 6
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` with Mot. at 5 (“Legal Standard”). Despite GTP’s alleged concerns, this requirement
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`does not undermine conjoint surveys in all patent cases. Courts routinely permit conjoint survey
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`analysis when infringement is ongoing. Cf. Am. Compl., ¶ 24, Odyssey Wireless, Inc. v. Apple
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`Inc., No. 3:15-cv-01735 (S.D. Cal. Aug. 29, 2014), Dkt. 37 (alleging defendant “continues” to
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`infringe); Am. Compl., ¶ 19, Apple Inc. v. Samsung Elecs. Co., No. 5:12-cv-00630 (N.D. Cal. Aug.
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`31, 2012), Dkt. 261 (same); Am. Compl., ¶ 63, TV Interactive v. Sony Corp., No. 3:10-cv-00475
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`(N.D. Cal. Sept. 16, 2011), Dkt. 333 (same). Here, the period of alleged infringement ended in
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`2 It is undisputed that because of Samsung’s late-2021 advertising efforts, at least AR Emoji is in
`the present day consumer consciousness. See https://www.youtube.com/watch?v=_s8c3bQACz4.
`GTP has failed to carry its burden to show that consumer preferences for
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` in the period of alleged infringement were identical or even similar to those today. See
`Ex. N (No. 2:12-cv-09366, Dkt. 127 (Wind Decl. ¶ 32)).
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`-2-
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`

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`Case 2:21-cv-00040-JRG Document 180 Filed 12/30/21 Page 4 of 8 PageID #: 9112
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`July 2020 when the last Patent-in-Suit expired. Dr. Groehn’s “shift in demand” calculations
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`purporting to show what a consumer would pay in 2021 for
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` on a
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`smartphone sold in 2021 are thus irrelevant and prejudicial, warranting exclusion.
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`B.
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`The Groehn Survey Did Not Measure the Value of the Claimed Invention
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`Rather than measure the value of the claimed invention, Dr. Groehn tested three “patented
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`features” relating to facial recognition. See Mot. at 10-12 (providing Groehn Survey’s definitions).
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`But facial recognition is not encompassed by the claims of the Patents-in-Suit. This is especially
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`true for the ’431, ’949, and ’079 Patents, which require determining or detecting a “gesture.” This
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`fundamental error resulted in a conjoint survey improperly “targeted at an invention other than the
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`one at issue in this litigation.” Unwired Planet, LLC v. Apple Inc., No. 13-cv-04134-VC, 2017
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`WL 589195, at *1(N.D. Cal. Feb. 14, 2017).
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`GTP does not actually dispute that the surveyed features are unrelated to the Patents-in-
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`Suit. Opp. at 7-8. Instead, GTP merely states that this issue
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` Id. GTP is wrong. As a matter of law, failure to measure the value of the
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`claimed invention “is a problem of admissibility rather than weight.” Unwired Planet, 2017 WL
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`589195, at *1 (citation omitted). See also Fractus, S.A. v. Samsung, Case No. 6:09-cv-203-LED-
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`JDL, 2011 WL 7563820, at *1 (E.D. Tex. Apr. 29, 2011) (excluding survey that estimated
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`consumer preferences “not tied to the alleged advantageous technical characteristics of the patents-
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`in-suit”). GTP is also wrong that Dr. Groehn was
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` of which
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`Samsung features allegedly infringe the Asserted Patents. Opp. at 7. Dr. Groehn cannot
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` when it directly contradicts this Court’s Markman Order. Mot. at 9-10 (citing Dkt.
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`93 at 55-57). This methodological flaw is fatal to the Groehn Report; expert evidence not properly
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`“tied” to the claimed invention’s footprint in the marketplace “confuses the issues and must be
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`excluded.” Fractus, S.A., 2011 WL 7563820, at *1.
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`-3-
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`Case 2:21-cv-00040-JRG Document 180 Filed 12/30/21 Page 5 of 8 PageID #: 9113
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`C.
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`The Groehn Survey “Warped” Respondents’ Real-World Considerations
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`GTP’s directive
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` cornered Dr. Groehn: either he ran the
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`
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`survey with the three “patented features” making up half of the six total attributes (Option 1), or
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`he ran the survey with more than six total attributes (Option 2). Option 1 ran the risk of “warping”
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`respondents’ real-world considerations by forcing them to focus on the “patented features.” See
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`Oracle Am., Inc. v. Google Inc., Case No. 3:10-cv-03561-WHA, 2012 WL 850705, at *9-10 (N.D.
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`Cal. Mar. 13, 2012); MacDougall v. Am. Honda Motor Co., No. SACV 17-1079 JGB (DFMx),
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`2020 WL 5583534, at *7-9 (C.D. Cal. Sept. 11, 2020). Option 2 ran the risk of departing from the
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`“accepted methodology” of testing six or fewer attributes in a conjoint survey. Opp. at 9.3
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`Dr. Groehn (and/or GTP’s counsel) chose Option 1, with consequences similar to those in
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`Oracle and MacDougall. The disproportionate number of “patented features” artificially inflated
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`respondents’ preferences for those features. See Ex. O (Table 8). For example, because of this
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`design flaw, Dr. Groehn concluded that Samsung would experience
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`[M]. This constitutes an
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` reduction in profit
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`from its sales of Accused Products. Id. at line
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`. Id. at line
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` Samsung actually earned
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` He also concluded that
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`without
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`, Samsung would sell
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` Accused Products, id.
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`which is
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` fewer than the
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` Samsung actually sold, id.
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`
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`This constitutes a
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`reduction in sales
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` These results are “irrational” and
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`will unfairly prejudice Samsung at trial. See Virnetx, Inc. v. Cisco Sys., 767 F.3d 1308, 1333 (Fed.
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`3 A more reliable option would have been to conduct a separate conjoint survey for each of the
`three “patented features.”
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`-4-
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`

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`Case 2:21-cv-00040-JRG Document 180 Filed 12/30/21 Page 6 of 8 PageID #: 9114
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`Cir. 2014) (excluding evidence that “provides a baseline from which juries might hesitate to stray,
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`even if the evidence supported a radically different [result]”) (alteration added).
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`That these results are “irrational” is not merely Samsung’s ipse dixit. Opp. at 1. Dr. Groehn
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`admitted himself that something appears to be amiss.4 Compare Opp. at 12
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`. It is common sense that these two features are
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`not responsible for
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` of Samsung’s total sales of Accused Products, or
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`of Samsung’s total
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`profit on those sales.5 It is disingenuous for GTP to argue otherwise.
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`GTP contends that concerns regarding the number and type of features surveyed do not
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`provide a basis for excluding the Groehn Report. Opp. at 10. That is not true when the survey
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`produces objectively “irrational results.” GTP cites Apple v. Samsung, Opp. at 11 n.3, but that
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`case undercuts its argument. There, the court rejected criticisms regarding the number of features
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`because, “[i]n contrast [to Oracle], there are no irrational results that stem from the surveys in
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`this case.” Apple, Inc. v. Samsung Elecs. Co., Ltd., Case No. 5:12-cv-00630-LHK, 2014 WL
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`794328, at *16 n.10 (N.D. Cal. Feb. 25, 2014) (emphasis added). Like in Oracle and MacDougall,
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`here there are irrational results. The Groehn Report should be excluded accordingly.
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`III.
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`CONCLUSION
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`For the foregoing reasons, Samsung respectfully requests that the Court grant its Daubert
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`motion to preclude the opinions and testimony of Dr. Groehn.
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`4
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` Whether
`these “irrational results” resulted from an unreliable design or unreliable input is immaterial—Dr.
`Groehn cannot “fix the underlying issue.” Compare Earl, 2021 WL 3140545, at *5.
`5
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`-5-
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`Case 2:21-cv-00040-JRG Document 180 Filed 12/30/21 Page 7 of 8 PageID #: 9115
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`
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`DATED: December 28, 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
`
`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
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`-6-
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`

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`Case 2:21-cv-00040-JRG Document 180 Filed 12/30/21 Page 8 of 8 PageID #: 9116
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`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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`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 December 28, 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) and by email.
`
` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`CERTIFICATE OF AUTHORIZATION TO SEAL
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`I hereby certify that under Local Rule CV-5(a)(7), the foregoing document is filed under
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`seal pursuant to the Court’s Protective Order entered in this matter.
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` 
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-7-
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