Case 2:21-cv-00040-JRG Document 36 Filed 05/25/21 Page 1 of 7 PageID #: 378
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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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`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
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`Defendants.
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`JURY TRIAL DEMANDED
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`C.A. NO. 2:21-cv-00040-JRG
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` LEAD CONSOLIDATED CASE
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS AMERICA,
`INC.,
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`C.A. NO. 2:21-cv-00041-JRG
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`Defendants.
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`PLAINTIFF GESTURE TECHNOLOGY PARTNERS’ SUR-REPLY TO DEFENDANTS
`SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG ELECTRONICS AMERICA,
`INC.’S MOTION TO DISMISS
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`1
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`Case 2:21-cv-00040-JRG Document 36 Filed 05/25/21 Page 2 of 7 PageID #: 379
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` Plaintiff Gesture Technology Partners, LLC (“GTP”) files this sur-reply to Defendants
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`Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc.’s (“Defendants”) Motion
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`to Dismiss GTP’s Complaint (the “Motion” or “Mot.”), Dkt. No. 23. For the following reasons,
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`the Motion should be denied in its entirety.
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`I. ARGUMENT
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`GTP has plainly identified Defendants’ Accused Products in its Complaint, as well as made
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`factual allegations of Defendants’ infringement relating to each Asserted patent. Defendants even
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`admit this, stating that GTP links “Accused Features to the asserted claims by way of screenshots,”
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`but they argue that GTP was “unsuccessful” for unspecified reasons. Reply at 3. Defendants rely
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`on Chapterhouse for their argument that more is required, but they ignore factual allegations made
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`throughout the Complaint that were of the type found to be missing in Chapterhouse. Furthermore,
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`while the Court has consistently refused to parse pre-suit knowledge and post-suit knowledge at
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`the pleading stage, Defendants ignore that GTP has pled allegations from which an inference of
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`pre-suit knowledge can be drawn. For at least these reasons, GTP respectfully requests that the
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`Court deny Defendants’ motion in its entirety.
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`A. GTP Has Satisfied The Pleading Standard For Direct Infringement.
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`Defendants now claim that Samsung cannot “prepare an answer much less its defenses”
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`due to lack of notice of the accused instrumentalities. Reply at 1. But that is plainly incorrect. In
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`an area of law known for its complexity, the Court’s instructions on identifying Accused
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`Instrumentalities at the pleading stage are notable for their clarity: “The pleading requirements set
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`forth in Twombly and Iqbal do not require a patentee to identify specific products or services by
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`name in the complaint.” Lodsys, LLC v. Brother Int’l Corp., No. 2:11-cv-90-JRG, 2012 U.S. Dist.
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`LEXIS 31456 at *13 (E.D. Tex. Mar. 8, 2012) (Gilstrap, J.) (emphasis added) (collecting cases).
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`And GTP has more than met the Court’s established pleading requirement, by specifically
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`Case 2:21-cv-00040-JRG Document 36 Filed 05/25/21 Page 3 of 7 PageID #: 380
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`identifying the Accused Products in its Complaint. See Compl. ¶¶23-24. The Complaint even
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`identifies and describes specific features of the Accused Products with screen shots, narrative
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`explanations, and hyperlinks to additional supporting information (see, e.g., Compl. ¶¶25-30).
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`GTP has clearly identified the Accused Instrumentalities for each asserted patent.
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`Defendants also assert that they lack fair notice because “GTP has failed to link its
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`screenshots to exemplary claim elements.” Reply at 2. That demand is entirely contrary to
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`controlling law. See K-Tech Telecomms., 714 F.3d 1277, 1284 (“It logically follows that a patentee
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`need only plead facts sufficient to place the alleged infringer on notice as to what he must defend
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`. . . Thus, a plaintiff in a patent infringement suit is not required to specifically include each
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`element of the claims of the asserted patent”) (quoting McZeal, 501 F.3d at 1357) (emphasis
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`added)). But GTP has provided even more detail regarding how the Accused Products infringe—
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`information that Defendants ignore. Factual allegations of Defendants’ infringement of each
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`Asserted Patent are described in detail in Paragraphs 31-91 of the Complaint, including an
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`identification of a specific claim of each patent that is allegedly infringed by the accused products.
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`Defendants’ misplaced attempt to hold GTP to a heightened pleading standard is based on
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`Chapterhouse, LLC v. Shopify, Inc., No. 2:18-CV-00300- JRG, 2018 WL 6981828 (E.D. Tex. Dec.
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`10, 2018). In that case, the Court’s ruling was based on the plaintiff pleading no “accompanying
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`factual allegations.” Id. at 5. In contrast, GTP’s Complaint details how the accused products
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`infringe each exemplary asserted claim and pleads factual information that is more than sufficient
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`to raise a plausible inference that all elements of the asserted claims are infringed. See Compl.
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`¶¶25-91. Nothing more is required. See Uniloc USA, Inc. v. Avaya Inc., No. 6:15-cv-1168-JRG,
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`2016 U.S. Dist. LEXIS 181826, at *14-17 (E.D. Tex. May 13, 2016) (Gilstrap, J.).
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`Case 2:21-cv-00040-JRG Document 36 Filed 05/25/21 Page 4 of 7 PageID #: 381
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`To the extent Defendants are seeking to understand more particularly how they infringe the
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`Asserted Patents, that additional information has already been provided in GTP’s infringement
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`contentions, which were served on April 28, 2021. See, e.g., Pers. Audio, LLC v. Google, Inc.,
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`No. 1:15-cv-350, 2017 U.S. Dist. LEXIS 122635, at *11-12 (E.D. Tex. May 15, 2017) (Clark, J.)
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`(denying a motion to dismiss and “acknowledg[ing] a relationship between the plausibility analysis
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`and early service of infringement contentions”); MAZ Encryption Techs. LLC, 2016 U.S. Dist.
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`LEXIS 191607, at *9 (“Allegations to the level of detail contained in infringement contentions are
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`not required at the pleading stage. Indeed, the local rules of this Court require Plaintiff to serve its
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`infringement contentions upon Defendants shortly after the complaint is served and the initial
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`scheduling conference is set.”). The accused instrumentalities are fully identified in the
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`Complaint, and Defendants have been provided fair notice. GTP respectfully submits that the
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`Motion should be denied.
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`B. GTP Has Plausibly Pled Induced Infringement.
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`Defendants’ argument that the Complaint fails to plead pre-suit knowledge sufficiently (see
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`Reply at 4) lacks merit because the Court has repeatedly held that “pre-suit” and “post-suit”
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`indirect infringement claims should not be evaluated separately at the pleading stage. See, e.g,
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`Lochner Techs., LLC v. AT Labs Inc., No. 2:11-CV-242, 2012 U.S. Dist. LEXIS 92924, at *9-10
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`(E.D. Tex. Jul. 5, 2012) (Gilstrap, J.); see also Cellular Comms. Equip. LLC v. HTC Corp., No.
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`6:13-CV-507, 2015 U.S. Dist. LEXIS 179461, at *26-27 (E.D. Tex. Mar. 27, 2015) (Davis, J.).
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`But Defendants also assert that GTP “cannot plead facts alleging Samsung’s knowledge of
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`the Asserted Patents before they expired.” Reply at 4 (emphasis added). GTP can and has pled an
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`implication of presuit knowledge on the part of Defendants. By alleging that Defendants had
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`knowledge “at least as of the filing of this Complaint,” GTP has described pre-suit knowledge by
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`Defendants: “The implication is that [Defendant] induced infringement before the complaint was
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`4
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`Case 2:21-cv-00040-JRG Document 36 Filed 05/25/21 Page 5 of 7 PageID #: 382
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`filed. Viewing the facts in the light most favorable to [Plaintiff], the complaint describes pre-suit
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`conduct.” Estech Sys., Inc. v. Target Corp., 2020 U.S. Dist. LEXIS 209893, at *17 (Aug. 27,
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`2020) (Payne, J.) (denying motion to dismiss indirect infringement claim where plaintiff alleged
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`defendant’s knowledge of the asserted patents “at least as of the date when it was notified of the
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`filing of this action.”). Viewing the facts in the light most favorable to GTP, the complaint
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`describes pre-suit knowledge that extends to a period before the patents-in-suit expired. See
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`Compl. ¶¶45, 60, 75, 89 (alleging knowledge by Defendants “at least as of the filing of this
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`Complaint.”). This allegation is sufficient at the pleading stage under the Court’s precedent.
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`Defendants’ request to dismiss GTP’s inducement and willful infringement claims should
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`therefore be denied.
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`C. If a More Definitive Statement Is Required, GTP Should Be Granted Leave to
`Amend.
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`As shown above, GTP has satisfied the pleading requirements of the Federal Rules at this
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`stage of the litigation. If, however, the Court finds that GTP’s Complaint falls short in any way
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`raised by the Motion, the appropriate remedy is not dismissal but rather an order that GTP be
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`granted leave to amend the Complaint to remedy any ambiguity to the extent that information is
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`publicly available. See Wapp Tech Ltd. P’ship v. Micro Focus Int’l, PLC, 406 F. Supp. 3d 585,
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`600 (E.D. Tex. 2019) (Mazzant, J.). (granting motion to dismiss and granting plaintiffs leave to
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`amend).
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`II. CONCLUSION
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`For the foregoing reasons, GTP respectfully requests that the Motion be denied in its
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`entirety. In the alternative, GTP respectfully requests that the Court grant GTP leave to amend its
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`Complaint to cure any deficiencies.
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`5
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`Case 2:21-cv-00040-JRG Document 36 Filed 05/25/21 Page 6 of 7 PageID #: 383
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`Dated: May 25, 2021
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`Respectfully submitted,
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`By: /s/ Fred I. Williams
`Fred I. Williams
`Texas State Bar No. 00794855
`Michael Simons
`Texas State Bar No. 24008042
`WILLIAMS SIMONS & LANDIS PLLC
`327 Congress Ave., Suite 490
`Austin, TX 78701
`Tel: 512-543-1354
`fwilliams@wsltrial.com
`msimons@wsltrial.com
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`Todd E. Landis
`State Bar No. 24030226
`WILLIAMS SIMONS & LANDIS PLLC
`2633 McKinney Ave., Suite 130 #366
`Dallas, TX 75204
`Tel: 512-543-1357
`tlandis@wsltrial.com
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`John Wittenzellner
`Pennsylvania State Bar No. 308996
`WILLIAMS SIMONS & LANDIS PLLC
`1735 Market Street, Suite A #453
`Philadelphia, PA 19103
`Tel: 512-543-1373
`johnw@wsltrial.com
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`ATTORNEYS FOR PLAINTIFF
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`Case 2:21-cv-00040-JRG Document 36 Filed 05/25/21 Page 7 of 7 PageID #: 384
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on May 25, 2021 the undersigned caused a copy of
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`the foregoing document to be served on all counsel of record, via the Court’s CM/ECF system,
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`pursuant to the Federal Rules of Civil Procedure.
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`/s/ Fred I. Williams
`Fred I. Williams
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