Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 1 of 21 PageID #: 520
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`CASE NO. 2:21-cv-00040-JRG
`(Lead Case)
`
`JURY TRIAL DEMANDED
`
`
`
`CASE NO. 2:21-cv-00041-JRG
`(Member Case)
`
`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’ MOTION TO STRIKE PLAINTIFF’S INFRINGEMENT
`CONTENTIONS AND/OR COMPEL INFRINGEMENT CONTENTIONS COMPLYING
`WITH THE COURT’S PATENT RULES
`
`

`

`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 2 of 21 PageID #: 521
`
`TABLE OF CONTENTS
`
`Page
`
`
`I.
`II.
`III.
`IV.
`
`V.
`
`INTRODUCTION ............................................................................................................. 1
`BACKGROUND ............................................................................................................... 2
`APPLICABLE LAW ......................................................................................................... 5
`ARGUMENT ..................................................................................................................... 6
`A.
`GTP’s AICs Should be Supplemented or Stricken under Patent Rule 3-1(c)
`for Failure to Provide GTP’s Theory of Infringement as to Each Asserted
`Feature As Used By the Accused Products ............................................................ 6
`1.
`GTP’s AICs Fail to Provide Full and Fair Notice of GTP’s Theory
`of Infringement for Each Accused Feature ................................................ 8
`GTP’s AICs Only Provide Adequate Notice for One Claim ..................... 9
`GTP’s AICs Fail to Identify the Claimed “Gesture” for Three of
`the Asserted Patents ................................................................................. 10
`GTP’s AICs Make No Allegation as to Representativeness .................... 12
`4.
`The Court Should Strike GTP’s AICs as to Products For Which GTP Has
`Not Obtained Leave and as to Non-Samsung Features ....................................... 13
`1.
`Accused Products for which GTP has not obtained leave ....................... 13
`2.
`Non-Samsung Accused Features ............................................................. 14
`GTP’s Failure to Comply with P.R. 3-1(c) Materially Prejudices Samsung ....... 14
`C.
`CONCLUSION ................................................................................................................ 15
`
`2.
`3.
`
`B.
`
`-i-
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`

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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 3 of 21 PageID #: 522
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Connectel, LLC v. Cisco Sys.,
`391 F. Supp. 2d 526 (E.D. Tex. 2005) ...............................................................................2, 5, 7
`
`Rapid Completions LLC v. Baker Hughes Inc.,
`No. 6:15-CV-724, 2016 U.S. Dist. LEXIS 80327 (E.D. Tex. June 21, 2016) ...................2, 6, 9
`
`Scorpcast, LLC v. Boutique Media,
`No. 20-cv-00193-JRG-RSP, Dkt. No. 152, slip op. (E.D. Tex. Mar. 26, 2021) ........................6
`
`UltimatePointer, LLC v. Nintendo Co.,
`No. 6:11-CV-496, 2013 U.S. Dist. LEXIS 200122 (E.D. Tex. May 28, 2013) ...................5, 10
`
`Uniloc 2017 v. Google,
`No. 2:18-cv-00491-JRG-RSP (E.D. Tex. Mar. 27, 2020) .......................................................13
`
`Other Authorities
`
`Fed. R. Civ. P. 12(b)(6)....................................................................................................................3
`
`Patent Rule 3-1 .............................................................................................................................5, 7
`
`Patent Rule 3-1(b) ............................................................................................................................5
`
`Patent Rule 3-1(c) .................................................................................................................. passim
`
`Patent Rule 3-6(b) ..........................................................................................................................14
`
`-ii-
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`

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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 4 of 21 PageID #: 523
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`
`
`I.
`
`INTRODUCTION
`
`Defendants Samsung Electronics Co. Ltd. and Samsung Electronics America, Inc.
`
`(collectively, “Samsung”) respectfully request the Court to order Plaintiff Gesture Technology
`
`Partners, LLC (“GTP”) to comply immediately with Patent Rule 3-1(c) by providing a chart
`
`“identifying specifically where each element of each asserted claim is found within each Accused
`
`Instrumentality”—i.e., how each Accused Instrumentality allegedly satisfies each element of each
`
`asserted claim—sufficient to give Samsung full and fair notice of GTP’s theory of infringement
`
`for each Accused Instrumentality.
`
`The four Asserted Patents relate generally to the use of one or more cameras and separate
`
`sensors to assist users in interacting with their mobile devices. GTP’s Amended Infringement
`
`Contentions (“AICs”) identify 33 Accused Products (various Samsung smartphones and tablets)
`
`as allegedly infringing by using one or more of 18 Accused Features. GTP’s AICs fail to provide
`
`a chart identifying specifically where each element of each Asserted Claim is found within “each
`
`Accused Instrumentality”—i.e., each Accused Feature as used by the Accused Products—as
`
`required by Patent Rule 3-1(c).
`
`For example, GTP’s AICs allege that Iris Scan Unlock (which utilizes a scan of a user’s
`
`iris to determine whether to unlock a phone), Bixby Vision (which provides a user information
`
`about objects around them, such as restaurant recommendations), and QR Codes (barcodes that
`
`can be only be decoded by QR scanners) are features of the Accused Products that infringe all four
`
`Asserted Patents. Each of these Accused Features is unique, with its own individual functions and
`
`operation; Iris Scan identifies a portion of the user’s eye, Bixby Vision identifies objects around
`
`the user such as restaurants, and QR Codes identifies and decodes a barcode. Despite their widely
`
`varied functions, GTP’s AICs provide no information describing these features, no description of
`
`the allegedly infringing operation of these features, and, most crucially, no infringement analysis
`
`-1-
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`

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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 5 of 21 PageID #: 524
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`
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`whatsoever for these features. GTP’s AICs are similarly deficient for almost all of the 18 Accused
`
`Features.
`
`GTP’s failure to provide sufficient information regarding its theory of infringement for
`
`each Accused Feature as used by the Accused Products significantly hampers Samsung’s ability
`
`to identify and provide discovery and to prepare its defenses in this case. These deficiencies are
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`particularly acute as to three of the four Asserted Patents, whose Asserted Claims explicitly require
`
`a “gesture” to be performed. GTP accuses all 18 Accused Features, including the three exemplary
`
`features discussed above, of infringing the “gesture” claims. After diligent investigation, however,
`
`Samsung is unable to discern how a human eye, a restaurant, or a barcode—let alone each of the
`
`18 Accused Features—can perform a “gesture” sufficient to satisfy these claims. Samsung has
`
`requested clarification from GTP for months, in letters, emails, and meet and confer discussions,
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`as to how the Accused Features allegedly infringe or what alleged “gesture” each Accused Feature
`
`performs. GTP’s AICs fail to resolve or even address these serious deficiencies. Accordingly,
`
`GTP’s AICs are inadequate under Patent Rule 3-1(c) and should be supplemented or stricken. See
`
`Connectel, LLC v. Cisco Sys., 391 F. Supp. 2d 526, 527–28 (E.D. Tex. 2005); Rapid Completions
`
`LLC v. Baker Hughes Inc., No. 6:15-CV-724, 2016 U.S. Dist. LEXIS 80327, at *21 (E.D. Tex.
`
`June 21, 2016).
`
`II.
`
`BACKGROUND
`
`The Accused Products are Samsung smartphones and tablets that use one or more cameras
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`and separate sensors to assist users in interacting with their mobile devices. GTP filed five nearly
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`identical Complaints against various Defendants, each alleging infringement of the same Asserted
`
`Patents—U.S. Patent Nos. 8,194,924 (“’924 Patent”); 7,933,431 (“’431 Patent”); 8,553,079 (“’079
`
`Patent”); and 8,878,949 (“’949 Patent”). GTP filed two of the cases in the Eastern District of
`
`-2-
`
`

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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 6 of 21 PageID #: 525
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`
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`Texas, against Huawei and Samsung, which have been consolidated. See Dkt. No. 14. GTP filed
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`the other three cases in the Western District of Texas.
`
`On April 23, 2021, Samsung sent GTP an email identifying various deficiencies in GTP’s
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`Complaint regarding its direct, indirect, and willful infringement claims, and proposing an agreed
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`extension of Samsung’s responsive pleading deadline until after service of GTP’s Preliminary
`
`Infringement Contentions (“PICs”). GTP declined that proposal. See Dkt. No. 23 at 5 n. 4. On
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`April 27, Samsung filed a motion to dismiss pursuant to Rule 12(b)(6). Dkt. No. 23. On April 28,
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`GTP served PICs identifying 41 Accused Products using 24 Accused Features.
`
`On May 7, 2021, Samsung sent GTP a letter identifying deficiencies in GTP’s PICs, and
`
`requesting a meet and confer to potentially avoid the need for motion practice.1 The May 7 letter
`
`notified GTP that (among other issues) each Accused Feature is different and that the PICs do not
`
`provide detail on how each Accused Feature allegedly infringes the claim elements of the Asserted
`
`Patents. GTP did not respond. One week later, on May 14, Samsung followed up with GTP by
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`email to reiterate Samsung’s request for a meet and confer. GTP responded and the parties agreed
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`to meet and confer on May 19.
`
`On May 19, 2021, Samsung sent GTP a second letter identifying further deficiencies in
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`GTP’s PICs for discussion during the scheduled meet and confer; for example, several of the 24
`
`Accused Features are not available on any Samsung devices, but only on devices produced by
`
`other manufacturers.2 Later that day, the parties met and conferred and GTP requested more time
`
`to review Samsung’s two letters. GTP sent a letter response on May 25 disagreeing that its PICs
`
`were deficient, and the parties had a further meet and confer on May 26.3
`
`
`1 Attached as Exhibit 1 is a true and correct copy of the May 7, 2021 letter.
`2 Attached as Exhibit 2 is a true and correct copy of the May 19, 2021 letter.
`3 Attached as Exhibit 3 is a true and correct copy of the May 25, 2021 letter.
`
`-3-
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`

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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 7 of 21 PageID #: 526
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`
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`On May 28, 2021, GTP reiterated its position from the May 26 meet and confer that its
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`PICs complied with the Court’s local rules but confirmed it would serve Amended Infringement
`
`Contentions (“AICs”) by June 4.4 In an email the same day, Samsung agreed to wait for the AICs
`
`before considering motion practice. Samsung also notified GTP that 11 of the Accused Products
`
`are not, and never have been, sold in the United States and requested that GTP withdraw those
`
`products from the list of Asserted Products.5
`
`GTP did not serve its AICs on June 4, 2021. On June 8, after Samsung followed up with
`
`GTP about the delay, GTP explained that counsel had an unexpected family medical issue and that
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`GTP would serve the AICs by June 11. Naturally, Samsung accepted this explanation.6
`
`GTP did not serve its AICs on June 11, 2021. On June 16, after Samsung again followed
`
`up with GTP about the delay, GTP served its AICs.7 GTP’s AICs identify 33 Accused Products
`
`using 18 Accused Features, withdrawing 10 Accused Products and 6 Accused Features from its
`
`PICs, and adding 2 Accused Products that were not in its PICs. While the AICs addressed some
`
`of the concerns Samsung raised regarding GTP’s PICs, the fundamental deficiencies of the PICs
`
`remain unaddressed in the AICs—GTP still fails to set forth its theory of infringement as to each
`
`Accused Feature as used by the Accused Products.
`
`On June 21, 2021, Samsung sent GTP a third letter identifying again the still-unresolved
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`deficiencies in GTP’s AICs and requesting that GTP further amend its contentions to address them
`
`or, if GTP is unwilling to do so, confirm the parties are at an impasse.8 The letter requested that
`
`
`4 Attached as Exhibit 4 is a true and correct copy of the May 28, 2021 email correspondence.
`5 Id.
`6 Attached as Exhibit 5 is a true and correct copy of the June 8, 2021 email correspondence.
`7 Attached as Exhibit 6 is a true and correct copy of GTP’s AICs served on June 16, 2021. Attached
`as Exhibit 7 is a true and correct copy of the June 16, 2021 email correspondence.
`8 Attached as Exhibit 8 is a true and correct copy of the June 21, 2021 letter.
`
`-4-
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`

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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 8 of 21 PageID #: 527
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`
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`GTP respond by June 23. GTP did not do so. On June 25, Samsung’s counsel followed up on the
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`June 21 letter leaving voice messages for GTP’s lead counsel and another of GTP’s counsel
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`requesting a commitment to resolve the matters raised in this motion by June 28.
`
`On June 28, 2021, GTP sent a letter response disagreeing that its AICs are deficient, making
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`clear that GTP opposes the relief requested by this motion, and confirming that the parties are at
`
`an impasse.9 Samsung’s repeated good faith efforts to resolve the matters raised in this motion
`
`have been unsuccessful, and GTP has not budged on its position as to these matters. Accordingly,
`
`Samsung files this Motion to Compel and/or Strike as to GTP’s AICs.
`
`III. APPLICABLE LAW
`
`“The Patent Rules demonstrate high expectations as to plaintiffs’ preparedness before
`
`bringing suit, requiring plaintiffs to disclose their preliminary infringement contentions before
`
`discovery has even begun.” Connectel, 391 F. Supp. 2d at 527. Patent Rule 3-1(c) requires “[a]
`
`chart identifying specifically where each element of each asserted claim is found within each
`
`Accused Instrumentality.” P.R. 3-1(c) (emphasis added). Accused Instrumentalities include “each
`
`accused apparatus, product, device, process, method, act, or other instrumentality.” P.R. 3-1(b)
`
`(emphasis added). Infringement contentions “providing vague, conclusory language or simply
`
`mimicking the language of the claims when identifying infringement fail to comply with Patent
`
`Rule 3–1” and “the Court has never condoned lower standards.” Connectel, 391 F. Supp. 2d at
`
`527–28. This Court has held that “broad conclusory allegations that the products are similar do
`
`not allow Plaintiffs to circumvent the Local Rules. Plaintiff must provide an explanation of the
`
`technical and functional identity of the products represented.” UltimatePointer, LLC v. Nintendo
`
`Co., No. 6:11-CV-496, 2013 U.S. Dist. LEXIS 200122, at *14–16 (E.D. Tex. May 28, 2013); see
`
`
`9 Attached as Exhibit 9 is a true and correct copy of the June 28, 2021 letter.
`
`-5-
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`

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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 9 of 21 PageID #: 528
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`
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`also Scorpcast, LLC v. Boutique Media, No. 20-cv-00193-JRG-RSP, Dkt. No. 152, slip op. at 2
`
`(E.D. Tex. Mar. 26, 2021).
`
`IV. ARGUMENT
`A.
`
`GTP’s AICs Should be Supplemented or Stricken under Patent Rule 3-1(c)
`for Failure to Provide GTP’s Theory of Infringement as to Each Asserted
`Feature As Used By the Accused Products
`
`GTP’s AICs fail to provide full and fair notice to Samsung of GTP’s theory of infringement
`
`for each Asserted Feature as used by the Accused Products, by failing to describe how each feature
`
`allegedly satisfies the claim elements of the Asserted Patents. P.R. 3-1(c). In its Complaint, its
`
`PICs, and its AICs, GTP purports to identify a disparate collection of Accused Features10 which,
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`when used by the Accused Products, allegedly infringe. Yet GTP describes the Accused Features
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`in such vague terms, all but a few without any documentary support, and without any infringement
`
`analysis whatsoever, that it is impossible for Samsung to know how GTP alleges each Accused
`
`Feature meets the claims of the Asserted Patents. Patent Rule 3-1(c) requires more.
`
`Patent Rule 3-1(c) dictates that GTP must provide specificity as to exactly what features or
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`operation of the Accused Products (which have hundreds of user features) are alleged to meet the
`
`limitations of the Asserted Claims and how they are alleged to meet those limitations. See Rapid
`
`Completions LLC, 2016 U.S. Dist. LEXIS 80327 at *21 (“It is not a defendant’s job to assume
`
`how a plaintiff believes each claim element is met or to assume how a plaintiff alleges the Accused
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`Instrumentality infringes. [Plaintiff’s] inclusion of screenshots of block quotes, diagrams from
`
`
`10 Under the heading, “Examples of Samsung’s Marketing of the Accused Features,” GTP states:
`“The Accused Products have features including, but not limited to, at least the following: Gesture
`Detection, Smile Shutter, Iris Scan Unlock, Face ID Unlock, Intelligent Scan Unlock, Tracking
`Autofocus, Selfie Focus, Smart OIS, Smart Stay, Smart Pause, Smart Scroll, Blur Background,
`Adjust Blur, Face Location, Active Shape Connection, Internet Transfer After Sense (e.g., QR
`Code), Bixby Vision, Control Exposure Based On Location, Live Masks Track/Apply, Live
`Stickers Track, AR Emoji, Beauty Mode, Portrait Mode, and Smile Shot.” Dkt. No. 1 ¶ 24.
`
`-6-
`
`

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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 10 of 21 PageID #: 529
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`
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`Defendants’ documents, and links to video clips made by defendants are similarly deficient in
`
`providing notice to defendants as to what [plaintiff’s] theories of infringement are and how
`
`[plaintiff] alleges each of the Accused Instrumentalities meets each claim element.”) (emphasis
`
`added). GTP’s mere vague descriptions regarding general camera operations or image processing
`
`techniques are insufficient under Patent Rule 3-1(c) and have significantly hampered Samsung’s
`
`ability to identify and provide discovery and prepare its defenses. “PICs providing vague,
`
`conclusory language or simply mimicking the language of the claims when identifying
`
`infringement fail to comply with Patent Rule 3-1.” Connectel, 391 F. Supp. 2d at 527–28 (holding
`
`the local rules require PICs to be “more than a perfunctory submission. . . . Plaintiffs are expected
`
`to rigorously analyze all publicly available information before bringing suit and must explain with
`
`great detail their theories of infringement”).
`
`GTP attempts to excuse its failure to provide sufficient notice of its theory of infringement
`
`by claiming it has not labeled anything as an “Accused Feature” in its PICs/AICs and that “the
`
`features are merely examples.” Ex. 9 at 1. That argument misses the mark. GTP’s Complaint
`
`lists all 24 Accused Features under the heading “Examples of Samsung’s Marketing of the
`
`Accused Features.” Dkt. No. 1 ¶ 25 (emphasis added). Further, GTP’s Complaint also accuses
`
`Samsung of infringing the ’924 Patent by “advising or directing end users and other third-parties
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`to use the Accused Features in the Accused Products in an infringing manner.” Dkt. No. 1 ¶ 46
`
`(emphasis added). GTP PICs re-use the 24 Accused Features and, after negotiated withdrawal of
`
`six Accused Features, its AICs re-use the remaining 18 Accused Features. GTP’s argument that
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`it does not allege infringement by the Accused Features as used by the Accused Products conflicts
`
`with the evidence. Moreover, if GTP’s infringement allegations were not specific to the Accused
`
`-7-
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`

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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 11 of 21 PageID #: 530
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`
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`Features, its infringement contentions as to the Accused Products would be even more deficient,
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`providing even less notice of its theory of infringement.
`
`1.
`
`GTP’s AICs Fail to Provide Full and Fair Notice of GTP’s Theory of
`Infringement for Each Accused Feature
`
`GTP’s AICs merely mimic the claim language, and for 24 of the Asserted Claims the AICs
`
`list all 18 Accused Features without providing any documentation or explanation as to how each
`
`Accused Feature allegedly infringes.11 With one exception, the only documentation GTP provides
`
`regarding the Accused Features, for any of the Asserted Claims, is the same three website links,
`
`without specifying which feature(s) the links relate to or how the links show each Accused Feature
`
`allegedly infringes. See Ex. 6, Ex. A at 2; Ex. B at 4; Ex. C at 1; Ex. D at 2. Specifically, the first
`
`link relates to “Use of Facial recognition security on your Galaxy Phone.”12 The second and third
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`links do not identify any of the Accused Features by name. The second link states that “Air
`
`Gestures let you control your mobile device,”13 but “Air Gestures” is not one of the 18 Accused
`
`Features. The third link describes “[h]ow to use Palm Gesture to take [a] Selfie,”14 but neither the
`
`AICs nor the link identifies which of the 18 Accused Features to which the “Air Gesture” or “Palm
`
`Gesture” allegedly relate so as to meet the claim limitations. Even assuming that the first link
`
`relates to the Face Recognition (face unlock) Accused Feature, and the “Air Gesture” and “Palm
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`Gesture” identified in the second and third links, respectively, relate to the Gesture Detection
`
`Accused Feature (which GTP does not make clear), the AICs still fail to provide any
`
`
`11 GTP alleges that all 18 Accused Features as used by the Accused Products infringe Claims 1[d],
`6, and 9 of the ’924 Patent; Claims 3, 7[b], 9, 14[c], 14[d], 15-18, and 21 of the ’431 Patent; Claims
`1[c], 1[d], 8[b], 8[c], 13[c], and 13[d] of the ’949 Patent; Claims 1[c], 8, 11[b], 11[c], and 21[a] of
`the ’079 Patent. See Ex. 6.
`12 https://www.samsung.com/us/support/answer/ANS00062630/
`13 https://www.samsung.com/ie/support/mobile-devices/how-can-i-control-galaxy-s5-using-physi
`cal-gestures-instead-of-just-touch-or-voice/
`14 https://www.samsung.com/sg/support/mobile-devices/how-to-use-palm-gesture-to-take-selfie-
`on-samsung-mobile-device/
`
`-8-
`
`

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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 12 of 21 PageID #: 531
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`
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`documentation or explanation for the other 16 Accused Features, much less GTP’s theory of
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`infringement as to each Accused Feature as used by the Accused Products.
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`For example, GTP provides no documentation and no theory of infringement as to how the
`
`Iris Scan Unlock, Bixby Vision, or QR Codes Accused Features meet any of the limitations of the
`
`Asserted Claims. None of these three features use or include Facial Recognition (face unlock),
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`“Air Gesture,” or “Palm Gesture.” None of the three weblinks identifies Iris Scan Unlock, Bixby
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`Vision, or QR Codes by name. GTP’s AICs are similarly deficient for almost all of the other
`
`Accused Features. GTP’s continued failure to provide documentation or explanation sufficient to
`
`provide notice to Samsung of GTP’s theory of infringement for each Accused Feature violates
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`Patent Rule 3-1(c). See Rapid Completions LLC, 2016 U.S. Dist. LEXIS 80327, at *21.15 Further
`
`with respect to the asserted method claims, GTP’s AICs fail to identify how the Accused Features
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`“when used allegedly result in the practice of the claimed method or process” as required by Patent
`
`Rule 3-1(c).
`
`2.
`
`GTP’s AICs Only Provide Adequate Notice for One Claim
`
`The only exception to these over-arching deficiencies is a single Asserted Claim for which
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`GTP (1) specifically identifies one Accused Feature, (2) provides sufficient detail to put Samsung
`
`on notice of GTP’s theory of infringement, and (3) provides a link to Samsung’s website that
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`details how that Accused Feature functions in an allegedly infringing manner as to that Asserted
`
`Claim. Specifically, dependent Claim 22 of the ’431 Patent recites “[a] method according to claim
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`21, wherein a virtual image on said display is moved or changed.” ’431 Patent at Claim 22. GTP’s
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`AICs for Claim 22 specifically identify one Accused Feature (AR Emoji), provide sufficient detail
`
`
`15 The AICs cover pleading likewise fails to provide any notice regarding GTP’s infringement
`theories for the Accused Features. The cover pleading provides a collection of website links for
`device specifications, teardown reports, and Wikipedia entries, none of which are specific to or
`include descriptions of the Accused Features.
`
`-9-
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`

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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 13 of 21 PageID #: 532
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`
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`to put Samsung on notice of GTP’s theory of infringement (“[T]he Accused Products control a
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`display a [sic] virtual image include, but not limited to: AR Emoji”), and provide a link16 to
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`Samsung’s website that details an allegedly infringing use of the Accused Feature (customizing an
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`AR Emoji as “a virtual image wherein the display is changed”). See Ex. 6, Ex. B at 19. For this
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`claim alone, GTP does not indiscriminately list all Accused Features, but rather provides
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`documentation that names the specific feature, and provides sufficient detail to inform Samsung
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`of GTP’s theory of infringement. For all other Asserted Claims, even where GTP only accuses a
`
`subset of the 18 Accused Features, GTP merely reuses one of the same three weblinks discussed
`
`above. This fails to provide requisite notice of GTP’s theories of infringement as to each Accused
`
`Feature.
`
`The fact that GTP provided a requisite level of detail for one Accused Feature for one
`
`Asserted Claim highlights how lacking the AICs are with respect to each Accused Feature and
`
`each Asserted Claim. “[T]he breadth of the accused products does not excuse Plaintiff from the
`
`duty of providing infringement contentions that are reasonably precise and detailed to provide
`
`defendants with adequate notice of the plaintiff's theories of infringement.” UltimatePointer, 2013
`
`U.S. Dist. LEXIS 200122, at *15–16 (holding that plaintiff must supplement its infringement
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`contentions to include a description of how each accused instrumentality meets each claim
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`limitation). GTP’s AICs fall well short of Patent Rule 3-1(c)’s requirements, and should be
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`supplemented or stricken accordingly.
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`3.
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`GTP’s AICs Fail to Identify the Claimed “Gesture” for Three of the
`Asserted Patents
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`GTP’s failure to identify its theory of infringement for each Accused Feature as used by
`
`the Accused Products is particularly acute as to the Asserted Claims that require a “gesture” to be
`
`
`16 https://www.samsung.com/au/support/mobile-devices/how-to-use-ar-emoji/
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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 14 of 21 PageID #: 533
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`performed. Three of the four Asserted Patents include claims explicitly reciting such a “gesture.”17
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`Yet, GTP’s AICs simply aver that the claims are met by “gestures associated with” each of the 18
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`Accused Features, without identifying a single purported gesture for any, let alone each, Accused
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`Feature. The AICs thus fail to explain in any way how each of the Accused Features as used by
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`the Accused Products allegedly satisfies the “gesture” claim limitations:
`
`Patent Claim
`[’949 Claim 1[c]]: determine a gesture has
`been performed in the electro-optical sensor
`field of view based on the electro-optical sensor
`output, and
`
`[’079 Patent Claim 1[c]]: determining, using
`the camera, the gesture performed in the work
`volume and illuminated by the light source.
`
`[’924 Patent Claim] 6. The handheld device of
`claim 1 wherein the computer is operable to
`determine a gesture based on at least one of the
`first camera output and the second camera
`output.
`
`Evidence18
`
`. . .
`The gestures that can be determined by the
`Accused Products include, but are not limited to
`gestures associated with: [Listing all 18
`Accused Features]
`
`See, e.g., [3 web links]
`. . .
`The gestures performed in the work volume
`and illuminated by the light source that can be
`determined by the Accused Products include
`those associated with, but not limited to,
`gestures associated with: [Listing all 18
`Accused Features]
`
`See, e.g., [3 web links]
`. . .
`The gestures that can be determined by at least
`the output of either the first camera or the
`second camera in the Accused Products include
`gestures associated with, but not limited to,
`gestures associated with: [Listing all 18
`Accused Features]
`
`See, e.g., [3 web links]
`
`As these excerpts demonstrate, the AICs do not identify a single gesture by name; rather,
`
`for each patent the AICs merely list all Accused Features and provide the same three website links
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`discussed above, without any further explanation. The first link, detailing facial recognition, does
`
`
`17 A “gesture” is recited in Claims 1, 4, 5, 11, 18–21, 24, and 25 of the ’079 Patent; Claims 1–3,
`8–10, and 13–15 of the ’949 Patent; and Claims 6 and 9 of the ’924 Patent.
`18 See Ex. 6.
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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 15 of 21 PageID #: 534
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`not include any information regarding a “gesture.”19 The second and third links relate to gestures,
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`but do not identify which of the listed Accused Features utilize those gestures or, crucially, how
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`they allegedly use those gestures. Even assuming “Air Gesture” and/or “Palm Gesture” relate to
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`the Gesture Detection Accused Feature and GTP alleges (without stating so) that they constitute
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`the claimed “gesture” for that Accused Feature, the AICs still fail to identify a single alleged
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`gesture for any of the other Accused Features.
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`For example, none of GTP’s links identifies any “gesture” for the Iris Scan Unlock, Bixby
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`Vision, or QR Codes Accused Features, and the AICs do not identify how these Accused Features
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`allegedly involve any gesture so as to infringe. After a diligent investigation, Samsung is unable
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`to discern how a human eye, a restaurant in the world, or a barcode—let alone each of the 18
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`Accused Features—can perform a “gesture” sufficient to satisfy the Asserted Claims. Samsung
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`has sought clarification from GTP for months, in letters, emails, and meet and confer discussions,
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`as to how the Accused Features allegedly infringe or what alleged “gesture” each Accused Feature
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`performs. GTP’s AICs fail to resolve or even address these serious deficiencies.
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`Accordingly, the Court should compel GTP to provide AICs that comply with Patent Rule
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`3-1(c) by identifying at least one “gesture” for each Accused Feature, or strike all allegations in
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`the AICs as to the Asserted Claims of the ’949, ’079, and ’924 Patents that require a “gesture” to
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`be performed.
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`4.
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`GTP’s AICs Make No Allegation as to Representativeness
`
`Each Accused Feature is unique, with its own individual functions and operations. As
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`previously discussed, Iris Scan Unlock, which utilizes a scan of a user’s iris to determine whether
`
`to unlock a Samsung phone, is entirely different from Bixby Vision, which allows users to secure
`
`
`19 https://www.samsung.com/us/support/answer/ANS00062630/
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`Case 2:21-cv-00040-JRG Document 51 Filed 06/29/21 Page 16 of 21 PageID #: 535
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`information about an object by focusing the phone’s camera on it. GTP’s AICs do not allege that
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`any Accused Feature is representative of any others (and could not, given the marked differences
`
`between the Accused Features), such that its bare-bone allegations relating to a small handful of
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`the Accused Features bears no relevance to the many other features for which GTP provides no
`
`infringement analysis whatsoever. This Court’s reasoning in Uniloc 2017 v. Google —striking
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`uncharted products from the infringement contentions—is instructive:
`
`The patent local rules require that the accused products be charted.
`There is some leeway for use of representative products, but there is
`a requirement that the Plaintiff n