Case 2:21-cv-00040-JRG Document 42 Filed 06/03/21 Page 1 of 7 PageID #: 471
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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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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS AMERICA,
`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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`C.A. NO. 2:21-cv-00041-JRG
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`PLAINTIFF GESTURE TECHNOLOGY PARTNERS, LLC’ SUR-REPLY TO
`DEFENDANTS HUAWEI DEVICE CO., LTD
`AND HUAWEI DEVICE USA, INC.’S PARTIAL MOTION TO DISMISS
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`Case 2:21-cv-00040-JRG Document 42 Filed 06/03/21 Page 2 of 7 PageID #: 472
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`Plaintiff Gesture Technology Partners, LLC (“GTP”) files this sur-reply on Defendants
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`Huawei Device Co., Ltd. (“Huawei Device”) and Huawei Device USA, Inc.’s (“Huawei USA”)
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`(collectively “Huawei” or “Defendants”) Partial Motion to Dismiss Plaintiff’s Original Complaint
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`for Patent Infringement (the “Motion” or “Mot.”), Dkt. No. 28. For the following reasons, the
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`Motion should be denied in its entirety.
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`I.
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`ARGUMENT
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`Huawei’s Reply reiterates the Motion’s insupportable argument that the Complaint’s
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`claims of pre-suit indirect and willful infringement should be dismissed. See Reply at 2-5; Mot. at
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`5-6. Both of those arguments are unsupported by the law of this Court. GTP has made sufficient
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`factual allegations of Huawei’s infringement relating to each Asserted Patent to support its claims
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`for induced and willful infringement. While the Court has consistently refused to parse pre-suit
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`knowledge and post-suit knowledge at the pleading stage, Huawei ignores that GTP has pled
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`allegations from which an inference of pre-suit knowledge can be drawn. For at least these reasons,
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`GTP respectfully requests that the Court deny Huawei’s motion in its entirety.
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`GTP Has Plausibly Pled Induced Infringement.
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`Huawei’s argument that the Complaint fails sufficiently to plead pre-suit knowledge (see
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`Reply at 2) 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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`1
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`Case 2:21-cv-00040-JRG Document 42 Filed 06/03/21 Page 3 of 7 PageID #: 473
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`Huawei argues that GTP has not pled facts that Huawei had knowledge of the Asserted
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`Patents before they expired. Reply at 2. GTP, however, can and has sufficiently pled pre-suit
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`knowledge by Huawei. For example, with regards to the ’924 patent, GTP has pled as follows:
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`Huawei has also indirectly infringed one or more claims of the ’924 patent by
`inducing others to directly infringe the ’924 patent. Huawei has induced end-users
`and other third-parties to directly infringe (literally or under the doctrine of
`equivalents) the ’924 patent by using the Accused Products. Huawei took active
`steps, directly or through contractual relationships with others, with the specific
`intent to cause them to use the Accused Products in a manner that infringes one or
`more claims of the ’924 patent, including, for example, Claim 1 of the ’924 patent.
`Such steps by Huawei included, among other things, advising or directing end-users
`and other third-parties to use the Accused Features in the Accused Products in an
`infringing manner; advertising and promoting the use of the Accused Products in
`an infringing manner; or distributing instructions that guide end-users and other
`third-parties to use the Accused Products in an infringing manner. Huawei
`performed these steps, which constitute induced infringement with the knowledge
`of the ’924 patent and with the knowledge that the induced acts constitute
`infringement. Huawei was aware that the normal and customary use of the Accused
`Products by others would infringe the ’924 patent. Huawei’s direct infringement
`of the ’924 patent was willful, intentional, deliberate, or in conscious disregard of
`Plaintiff’s rights under the patent.
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`Compl., ¶42 (emphasis added). GTP has made similar allegations for the other Asserted Patents.
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`See Compl., ¶¶57, 72, 86. These are the exact same type of allegations that the Court has
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`previously found sufficient to support claims for induced infringement. See Estech Sys., Inc. v.
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`Target Corp., 2020 U.S. Dist. LEXIS 209893, at *16-17 (Aug. 27, 2020) (Payne, J.) (denying
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`motion to dismiss indirect infringement claim where plaintiff alleged defendant’s knowledge of
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`the asserted patents “at least as of the date when it was notified of the filing of this action.”). By
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`alleging that Defendants had knowledge “at least as of the filing of this Complaint,” GTP has
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`described pre-suit knowledge by Defendants: “The implication is that [Defendant] induced
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`infringement before the complaint was filed. Viewing the facts in the light most favorable to
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`[Plaintiff], the complaint describes pre-suit conduct.” Id. at *17. Viewing the facts in the light
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`most favorable to GTP, the complaint describes pre-suit knowledge that extends to a period prior
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`2
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`Case 2:21-cv-00040-JRG Document 42 Filed 06/03/21 Page 4 of 7 PageID #: 474
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`to the expiration of the patents-in-suit. See Compl. ¶¶41, 56, 71, 85 (alleging knowledge by
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`Defendants “at least as of the filing of this Complaint.”). This allegation is sufficient at the
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`pleading stage under the Court’s precedent.
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`GTP Has Plausibly Pled Willful Infringement.
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`Huawei argues that GTP’s claims of willful infringement should be dismissed for the same
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`reasons as the induced infringement claims. Reply at 5. That argument should also fail. As GTP
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`cited in its Response brief, courts have held that pre-suit knowledge of an asserted patent is not
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`required to state a claim for willful infringement even when the asserted patent expired before the
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`complaint was filed. Fuzzysharp Techs. Inc. v. Nvidia Corp., 2013 U.S. Dist. LEXIS 126989, *10,
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`2013 WL 4766877 (N.D. Cal. Dept. 4, 2013). Huawei attempts to differentiate Fuzzysharp by
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`arguing that it has not conceded knowledge of the Asserted Patents as Nvidia did. Reply at 5. But
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`whether Huawei concedes knowledge of the Asserted Patents at the pleading stage is not
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`determinative. GTP has only to make a plausible allegation that Huawei had pre-suit knowledge
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`of the Asserted Patents before their expiration. See Addiction and Detoxification Inst. L.L.C. v.
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`Carpenter, 620 Fed App’x. 934, 936 (Fed. Cir. 2015) (“Rule 8(a)(2) of the Federal Rules of Civil
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`Procedure generally requires only a plausible 'short and plain' statement of the plaintiff's claim,
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`not an exposition of his legal argument.”) (quoting Skinner v. Switzer, 562 U.S. 521, 530 (2011)).
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`GTP has explicitly pleaded that Huawei’s direct infringement “was willful, intentional, deliberate,
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`or in conscious disregard of Plaintiff’s rights under the patent.” Compl. at ¶¶57, 72, 86.
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`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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`3
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`Case 2:21-cv-00040-JRG Document 42 Filed 06/03/21 Page 5 of 7 PageID #: 475
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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.
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`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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`Dated: June 3, 2021
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`Respectfully submitted,
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`By: /s/ Todd E. Landis
`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
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`4
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`Case 2:21-cv-00040-JRG Document 42 Filed 06/03/21 Page 6 of 7 PageID #: 476
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`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 42 Filed 06/03/21 Page 7 of 7 PageID #: 477
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on June 3, 2021 the undersigned caused a copy of the
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`foregoing document to be served on all counsel of record, via electronic mail and the Court’s
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`CM/ECF system, pursuant to the Federal Rules of Civil Procedure.
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`/s/ Todd E. Landis
`Todd E. Landis
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