Case 2:21-cv-00040-JRG Document 182 Filed 12/30/21 Page 1 of 8 PageID #: 9131
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CASE NO. 2:21-cv-00040-JRG
`(Lead Case)
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`JURY TRIAL DEMANDED
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`CASE NO. 2:21-cv-00041-JRG
`(Member Case)
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`JURY TRIAL DEMANDED
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
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`Plaintiff
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`v.
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`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
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`Defendants.
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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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`SAMSUNG DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO
`PRECLUDE THE OPINIONS AND TESTIMONY OF PLAINTIFF’S
`TECHNICAL EXPERT BENEDICT OCCHIOGROSSO
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`-i-
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`Case 2:21-cv-00040-JRG Document 182 Filed 12/30/21 Page 2 of 8 PageID #: 9132
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`Asserted Method Claims Opinions — GTP’s Opposition offers no substantive rebuttal
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`and fails to identify any evidence of use by Samsung in the United States. Dkt, 161, pp. 1-2. GTP
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`points to Mr. Occhiogrosso’s statement generally averring that Samsung infringes “by using” the
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`Accused Products. Id., p. 2. But that statement merely references infringement charts, which also
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`fail to identify any basis for alleging actual use by Samsung let alone use in the United States. See,
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`e.g., id., Ex. A, ¶219. It remains unrebutted that GTP’s expert failed to identify any evidence that
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`Samsung has performed any of the Asserted Method Claims.
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`Samsung has filed a motion for summary judgment that it does not infringe the Asserted
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`Method Claims because there is no evidence in the record (from Mr. Occhiogrosso or otherwise)
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`that Samsung uses any of the Accused Products in the United States. Dkt. 140, 140, pp. 6-8. The
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`present motion, however, seeks only to preclude Mr. Occhiogrosso from testifying at trial about
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`Samsung’s alleged use because his opinions in his report are not based on any competent evidence,
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`rendering his proposed testimony unreliable and highly prejudicial. Elder v. Tanner, 205 F.R.D.
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`190, 193, 194 (E.D. Tex. 2001). The relief requested is self-evident—to prevent GTP’s expert
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`from offering to the jury his unsupportable opinions regarding alleged infringement of the Asserted
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`Method Claims. Dkt. 137, p. 5 (“Mr. Occhiogrosso’s opinions . . . are unreliable and he should be
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`precluded from testifying as to any such alleged infringement.”).
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`The Contested Applications — GTP presents no practical reason why Mr. Occhiogrosso
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`could not have provided in his report opinions on whether the Contested Applications infringe,
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`despite the pending motions regarding discovery as to the Contested Applications. Dkt. 161, pp.
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`2-3. Samsung produced source code for the Contested Applications during the discovery period.
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`Further, public information was available about the Contested Applications, which GTP liberally
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`relied on throughout the discovery period. Dkt. 137, p. 8. Mr. Occhiogrosso’s deliberate decision
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`Case 2:21-cv-00040-JRG Document 182 Filed 12/30/21 Page 3 of 8 PageID #: 9133
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`to not review any of the produced source code, ignore all publicly available information about the
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`Contested Applications, and not provide any opinions in his report about alleged infringement as
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`to the Contested Applications warrants precluding his testimony about them.
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`Evidence Identified in the Report — The present motion does not seek to preclude Mr.
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`Occhiogrosso from relying on or testifying further about his CV or his deposition testimony, but
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`simply to preclude him from testifying about Samsung’s source code and technical documents not
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`discussed in the body of his report. Dkt, 161, p. 3. This Court has firmly established that an expert
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`is not permitted to testify about matters beyond the four corners of his report. See RMail Limited
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`v. Amazon.com, Inc., 2019 WL 10375642 at *5. Although Samsung produced the source code
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`base for multiple Accused Products, which included millions of lines of code, Mr. Occhiogrosso
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`never cited any of it in his report and admitted that he never even reviewed it. He should therefore
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`be precluded from discussing or referring to source code in his trial testimony. Given that Mr.
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`Occhiogrosso’s report provides no disclosure whatsoever as to his proposed trial testimony as to
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`source code, Samsung would be unfairly prejudiced by having to prepare for cross-examination of
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`Mr. Occhiogrosso on such an expansive corpus of evidence. While Samsung produced 150,000
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`documents, only a fraction were technical documents, which Mr. Occhiogrosso could have readily
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`located and identified. Fairness dictates that Mr. Occhiogrosso was required to apprise Samsung
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`of those specific documents on which he based his opinions and would rely at trial.
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`‘431 Patent, Claim 7 — The “means for controlling” in claim element 7[d] is a specific
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`limitation that appears once in Claim 7. Dkt. 161, pp. 4-5. Thus, GTP’s alleged disclosure in its
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`infringement contentions of Air Gestures, Palm Solution, and AR Emoji for claim elements 7[b]
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`(“camera means”) and 7[c] (“computer means”) is irrelevant. Elements 7[b] and 7[c] are separate
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`and distinct from element 7[d]. The alleged disclosure of those three features for elements 7[b]
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`-2-
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`Case 2:21-cv-00040-JRG Document 182 Filed 12/30/21 Page 4 of 8 PageID #: 9134
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`and 7[c] does not inform the reader that the functionality of those features relates in any way to
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`the “means for controlling” in element 7[d]. GTP’s reliance on the code listing for claim element
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`7[d] is further unavailing, because Mr. Occhiogrosso never reviewed the code and does not rely
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`on it in his report for any of his opinions, including for element 7[d]. Nothing in the record supports
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`the notion that the vaguely-described features in the code listing of the infringement contentions,
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`e.g., “Easy One Hand Feature,” related to Air Gestures, Palm Solution, and AR Emoji.
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`’431 Patent, Claims 19, 27, 28 — GTP argues that because its infringement contentions
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`for independent Claim 14 identified AR Emoji and Palm Solution (along with 17 other features,
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`Dkt. 137, Ex. 8, p. 71), it necessarily identified AR Emoji for dependent Claims 19 and 27, and
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`Palm Solution for dependent Claim 28. Dkt. 161, p. 5-8. It is axiomatic, however, that a method
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`that infringes a broader, independent claim does not necessarily infringe a narrower, dependent
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`claim. Indeed, reciting a narrower claim scope is a primary purpose of a dependent claim. GTP’s
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`identification of AR Emoji and Palm Solution as allegedly infringing Claim 14 therefore did not
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`implicitly inform the reader that GTP further alleged AR Emoji (and 17 other features identified
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`for Claim 14) infringed dependent Claims 19 and 27, or that Palm Solution infringed dependent
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`Claim 28. GTP explicitly identified by website only one feature in its infringement contentions
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`for Claim 19—Face ID Unlock but not AR Emoji, identified no feature for Claim 27 after dropping
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`Google’s Motion Sense, and identified no feature for Claim 28.1
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`‘924 Patent, Claims 10 and 12 — GTP does not deny that Mr. Occhiogrosso’s report
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`offered opinions that Claims 10 and 12 are infringed by “functionality for recognizing objects
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`1 GTP’s vague citation to “
`”—source code Mr. Occhiogrosso never even reviewed—likewise does not properly
`identify AR Emoji as accused. Dkt. 161, p. 6 (emphasis added). Similarly, GTP’s source code
`listing for Claim 28 (which makes no distinction between and conflates the supposed evidence of
`infringement for Claims 28 and 30, see Ex. 8, pp. 41-42) makes no reference to Palm Solution.
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`-3-
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`Case 2:21-cv-00040-JRG Document 182 Filed 12/30/21 Page 5 of 8 PageID #: 9135
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`based on the rear-facing camera, such as faces” and that this position was not disclosed in GTP’s
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`infringement contentions. Dkt. 161, p. 8-11. GTP points to Mr. Occhiogrosso’s description of
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`Face ID Unlock, Air Gestures, and Palm Solution and his opinions that these features purportedly
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`perform the object detection of Claim 10 and the reference frame limitation of Claim 12. No part
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`of GTP’s argument, however, explains why Mr. Occhiogrosso should be permitted to testify that
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`“functionality for recognizing objects based on the rear-facing camera” infringes Claims 10 and
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`12 when he provided no such disclosure in his report and, further, his report admittedly includes
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`opinions only for specific features.
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`‘079 Patent, Claim 30 — GTP argues that because the
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` Dkt. 161, p. 11. This is a naked admission that GTP’s
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`infringement contentions did not clearly identify the buttons as the purported “keypad” recited in
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`the claim. The Accused Products have hundreds if not thousands of physical components, such
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`that a general averment to the device as a whole provides no meaningful disclosure whatsoever.
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`Mr. Occhiogrosso’s reference to the analysis of claim element 9[a] of his infringement report fails
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`to identify physical buttons as the claimed keypad in the contentions.
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`‘949 Patent, Claim 13 — GTP argues that its reference to “Cameras and/or Sensors” in
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`the cover pleading of its infringement contentions disclosed a theory under which the same digital
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`camera is used both to detect the alleged gesture and to capture an image, because
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`more than a claim construction argument with respect to the term “electro-optical sensor,” not an
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` Dkt. 161, p. 12. This is nothing
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`explicit disclosure of an infringement theory.
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`“Gestures” — GTP admits that
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`-4-
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`Case 2:21-cv-00040-JRG Document 182 Filed 12/30/21 Page 6 of 8 PageID #: 9136
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` Dkt. 161, p. 13. Movements of a user’s face,
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`however, are facial expressions, which the Court distinguished from the claimed “gesture.” Dkt.
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`93 at 56-57. GTP characterizes facial expressions as movements of “body parts, which causes the
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`application to execute functions that change the user’s emoji to match those movements” to try to
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`meet the construed meaning of “gesture” (“movement of the hands or other body parts that conveys
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`meaning”), but this does not change the fact that such movements are facial expressions and are
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`thus excluded from the scope of the claimed “gesture.” Id. GTP does not attempt to defend Mr.
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`Occhiogrosso’s improper opinion that the mere presence of a body part is a gesture; presence is
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`not movement and thus also fails to satisfy the Court’s construction. GTP argues the movement
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`of a body part “mimicked” by AR Emoji or the “opening of the user’s eyes” are motions conveying
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`meaning, but GTP fails to identify any meaning supposedly conveyed by the movement. Seeking
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`to preclude Mr. Occhiogrosso from opining on “gestures” is not a request for summary judgment,
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`but simply to enforce the well-established rule that to avoid jury confusion an expert should not
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`be permitted to present an opinion contradicting the Court’s Markman Order.
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`“Oriented to View a User” — GTP ignores that the Court found the term “oriented to
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`view a user” requires an “actual configuration, not merely a capability.” Dkt, 161, p. 14-15; Dkt.
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`93, p. 46. By failing to provide evidence that any camera in the Accused Products was positioned
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`to be currently looking at a user at the time of sale, Mr, Occhiogrosso treated the limitation as a
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`mere capability in contravention of the Court’s Markman Order. Mr. Occhiogrosso’s report failed
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`to show the configuration of any camera in an Accused Product was oriented to view the user when
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`Samsung sold the device, the only time a potentially infringing act (i.e., sale) could be attributed
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`Samsung. Samsung’s supposed admission relates only to the presence of a camera on a device,
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`not the “actual configuration” of the device at the time of sale.
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`-5-
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`Case 2:21-cv-00040-JRG Document 182 Filed 12/30/21 Page 7 of 8 PageID #: 9137
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`DATED: December 28, 2021
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`Respectfully submitted,
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`By: /s/ Christopher W. Kennerly
`Christopher W. Kennerly (TX Bar No. 00795077)
`chriskennerly@paulhastings.com
`Radhesh Devendran (pro hac vice)
`radheshdevendran@paulhastings.com
`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
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`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
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
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`-6-
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`Case 2:21-cv-00040-JRG Document 182 Filed 12/30/21 Page 8 of 8 PageID #: 9138
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`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.
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` /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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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-7-
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