Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 1 of 19 PageID #: 684
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`GESTURE TECHNOLOGY PARTNERS,
`LLC,
`
`
`
`Plaintiff
`
`v.
`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
`
`
`Defendants.
`
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS AMERICA,
`INC.,
`
`JURY TRIAL DEMANDED
`
`
`C.A. NO. 2:21-cv-00040-JRG
`
` LEAD CONSOLIDATED CASE
`
`C.A. NO. 2:21-cv-00041-JRG
`
`
`Defendants.
`
`
`PLAINTIFF GTP’S RESPONSE TO 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 54 Filed 07/14/21 Page 2 of 19 PageID #: 685
`
`TABLE OF CONTENTS
`
`
`I.
`II.
`III.
`
`IV.
`
`
`
`INTRODUCTION .............................................................................................................. 1
`BACKGROUND ................................................................................................................ 2
`ARGUMENT ...................................................................................................................... 4
`GTP’s AICs Comply With The Local Rules And Provide Fair And Adequate
`A.
`Notice Of GTP’s Infringement Theories By Charting Every Component Of
`The Accused Products To the Asserted Claims. ..................................................... 4
`1. GTP’s AICs Comply With Local Patent Rule 3-1(c) And Provide Fair
`And Adequate Notice Of GTP’s Infringement Theory For Each
`Accused Product. .............................................................................................. 5
`2. GTP’s AICs Provide Fair And Adequate Notice For Every Charted
`Claim. ............................................................................................................... 8
`3. Samsung’s Fundamental Misunderstanding Of The Claims Does Not
`Force GTP To Chart Features As The Accused Products. ............................... 9
`4. GTP Has Not Used Representative Products. ................................................ 10
`GTP’s Addition Of Two Inadvertently Omitted Products And Reference To
`A Non-Samsung Application Should Not Be Stricken. ........................................ 10
`1. Good Cause Existed For GTP’s Addition Of One Phone And One
`Tablet. ............................................................................................................. 11
`2. GTP’s Reference To A Non-Samsung Branded Application Should Not
`Be Stricken. .................................................................................................... 12
`Samsung Is Not Materially Prejudiced Because The AICs Comply With The
`Local Rules. .......................................................................................................... 12
`In The Alternative, GTP Should Be Granted Leave To Amend. .......................... 13
`D.
`CONCLUSION ................................................................................................................. 13
`
`
`B.
`
`C.
`
`
`
`i
`
`

`

`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 3 of 19 PageID #: 686
`
`TABLE OF AUTHORITIES
`
`
`
`Cases
`
`Am. Video Graphics, L.P. v. Elec. Arts, Inc.,
` 359 F. Supp. 2d 558 (E.D. Tex. 2005) ........................................................................................ 9
`
`Computer Acceleration Corp. v. Microsoft Corp.,
` 503 F. Supp. 2d 819 (E.D. Tex. 2007) .................................................................................... 1, 9
`
`DataTreasury Corp. v. Wells Fargo & Co., C.A.,
` No. 2:06-CV-72-DF, 2010 U.S. Dist. LEXIS 110658 (E.D. Tex. Sep. 13, 2010) ...................... 4
`
`Dynamic Applet Techs., LLC v. Mattress Firm, Inc.,
` Case No. 4:17-cv-00860-ALM-KPJ, Dkt. No. 123, 2019 U.S. Dist. LEXIS 50125 (E.D. Tex.
`Mar. 26, 2019) ............................................................................................................................. 5
`
`Eolas Tech. Inc. v. Amazon.com, Inc.,
` 6:15-cv-1038, 2016 WL 7666160 (E.D. Tex. Dec. 5, 2016)..................................................... 12
`
`Estech Sys. v. Target Corp.,
` No. 2:20-cv-00123-JRG-RSP, 2020 U.S. Dist. LEXIS 150768 (E.D. Tex. Aug. 20, 2020) .... 11
`
`Gree, Inc. v. Supercell Oy,
` No. 2:19-cv-00311-JRG-RSP, 2021 U.S. Dist. LEXIS 26073 (E.D. Tex. Feb. 11, 2021) ......... 9
`
`Lunareye, Inc. v. Airiq, Inc.,
` No. 9:07CV-113, 2010 U.S. Dist. LEXIS 160718 (E.D. Tex. Apr. 1, 2010) ........................... 11
`
`Orion IP, LLC v. Staples, Inc.,
` 407 F. Supp. 2d 815 (E.D. Tex. 2006) ........................................................................................ 5
`
`Realtime Data, LLC v. Packeteer, Inc.,
` No. 6:08-cv-144, 2009 U.S. Dist. LEXIS 73217 (E.D. Tex. 2009) ........................................ 4, 5
`
`Sol IP, LLC v. AT&T Mobility, LLC,
` 2020 U.S. Dist. LEXIS 68468 (E.D. Tex. Apr. 20, 2020) .......................................................... 9
`
`STMicroelectronics, Inc. v. Motorola, Inc.,
` 308 F. Supp. 2d 754 (E.D. Tex. 2004) ................................................................................ 4, 5, 6
`
`Team Worldwide Corp. v. Academy, Ltd.,
` 2020 U.S. Dist. LEXIS 143339, 2020 WL 4601635 (E.D. Tex. Aug. 11, 2020) ............. 1, 6, 12
`
`Thomas Swan & Co. v. Finisar Corp.,
` No. 2:13-cv-178-JRG, 2014 U.S. Dist. LEXIS 194431 (E.D. Tex. Apr. 29, 2014) ................. 11
`
`
`
`ii
`
`

`

`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 4 of 19 PageID #: 687
`
`Tivo Inc. v. Samsung Elecs. Co.,
` Case No. 2:15- cv-1503, 2016 U.S. Dist. LEXIS 96299 (E.D. Tex. July 22, 2016) ................. 10
`
`Vertical Computer Sys. v. Interwoven, Inc.,
` 2013 U.S. Dist. LEXIS 207181 (E.D. Tex. Sept. 13, 2013) ....................................................... 6
`
`iii
`
`

`

`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 5 of 19 PageID #: 688
`
`I.
`
`INTRODUCTION
`
`Defendants Samsung Electronics Co. Ltd. and Samsung Electronics America, Inc.
`
`(collectively, “Samsung”) improperly seek to force Plaintiff Gesture Technology Partners, LLC
`
`(“GTP”) to marshal all of its evidence of infringement and try its case through amended
`
`infringement contentions. That is a common tactic employed by defendants, and the Court has
`
`consistently held that it is improper. See, e.g., Team Worldwide Corp. v. Academy, Ltd., 2020 U.S.
`
`Dist. LEXIS 143339, *14, 2020 WL 4601635 (E.D. Tex. Aug. 11, 2020) (Payne, J.) (“the Court
`
`will not resolve the substantive issue of infringement on pre-discovery contentions.”)
`
`Although GTP believed that its initial Infringement Contentions (“IIC”) were sufficient to
`
`put Samsung on notice of what is accused, GTP amended its IICs in response to multiple meet and
`
`confer requests from Samsung. GTP’s Amended Infringement Contentions (“AIC”) comply with
`
`the Local Rules and put Samsung on sufficient and reasonable notice of what is accused. GTP has
`
`provided Samsung with 64 pages of charts and a detailed, 17-page table of components of various
`
`Samsung phones and tablets (the “Accused Products”) that set out GTP’s theory of infringement
`
`based on publicly available information. Samsung continues to try to make this a case about
`
`features, but it is not. But the asserted claims do not claim “gestures”—they claim devices that
`
`have components that respond to “gestures.” GTP has exhaustively identified those components
`
`for which publicly available information could be obtained.
`
`The purpose of the Court’s Patent Rules is “to further the goal of full, timely discovery and
`
`provide all parties with adequate notice and information with which to litigate their cases.”
`
`Computer Acceleration Corp. v. Microsoft Corp., 503 F. Supp. 2d 819, 822 (E.D. Tex. 2007)
`
`1
`
`

`

`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 6 of 19 PageID #: 689
`
`(Clark, J.).1 GTP has provided Defendants with adequate notice of its theories of infringement,
`
`and Defendants’ arguments should be rejected.
`
`II. BACKGROUND
`
`GTP filed its complaint against Samsung on February 4, 2021, alleging infringement of
`
`U.S. Patent Nos. 8,194,924 (the “’924 patent”), 7,933,431 (the “’431 patent”), 8,878,949 (the
`
`“’949 patent”), and 8,553,079 (the “’079 patent”) (collectively, the “Asserted Patents”). See Dkt.
`
`No. 1. The Asserted Patents are generally directed to innovations in using mobile phone cameras
`
`to assist a user to interact with their smartphone, including, for example, but not limited to
`
`unlocking their phone, taking and using photos or videos, and providing other functions. Id. at ¶
`
`21. GTP has asserted a mixture of apparatus and method claims (the “Asserted Claims”). See Ex.
`
`E.
`
`GTP served its IICs on April 28, 2021, in accordance with the Local Rules.2 GTP served
`
`the required preliminary infringement contentions on Samsung, disclosing GTP’s theories of
`
`infringement, including the internal components that GTP contends—based on publicly available
`
`information--meet the claim limitations for each asserted claim. GTP also identified various
`
`applications that use these components, along with the non-publicly available software associated
`
`with the components, that operate the Accused Products through the use of gestures. Those
`
`components and their related software allow the detection of detect numerous types of gestures to
`
`perform various functions and commands, depending on the application being used such as
`
`
`1 Samsung filed its discovery-related motion to strike GTP’s infringement contentions using well over the limit of 7
`pages of briefing and 5 pages of attachments set by the Court’s Joint Discovery Order. See Dkt. No. 43 at 9.
`2 A true and correct copy of GTP’s initial Infringement Contentions are attached as Exhibit 1.
`
`
`
`2
`
`

`

`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 7 of 19 PageID #: 690
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`scrolling through a webpage without touching the Accused Products’ screen3 or taking photos and
`
`videos.4
`
`On May 7, 2021,5 and May 19, 2021,6 Samsung sent letters detailing alleged deficiencies
`
`in GTP’s IIC. After carefully reviewing Samsung’s letters and the IICs, GTP sent Samsung a letter
`
`on May 25, 20217 disagreeing with Samsung’s contentions that the IICs did not satisfy the Local
`
`Rules. After subsequent correspondence and multiple meet-and-confer teleconferences, GTP
`
`served its AICs at Samsung’s request on June 16, 2021, to address numerous issues that Samsung
`
`had raised about GTP’s initial infringement contentions.8 GTP attempted to clarify any ambiguity
`
`in the IICs by serving the AICs at Samsung’s request.9 The AICs removed multiple phones that
`
`Samsung claims were not sold in the United States, added one phone and one tablet that were
`
`unintentionally omitted from the IICs, and clarified its infringement theories to respond to
`
`Samsung’s complaints.10 The IICs and AICs also contained numerous example links to Samsung
`
`website pages and documentation explaining how the components and related software of the
`
`Accused Products respond to gestures within the Accused Products.
`
`On June 30, 2021, Samsung filed Samsung Defendants’ Motion to Strike Plaintiff’s
`
`Infringement Contentions and/or Compel Infringement Contentions Complying with the Court’s
`
`Patent Rules (the “Motion”) (Dkt. No. 21).
`
`
`3 Samsung Electronics Co., Ltd., What is the Smart Scroll™ feature on my Samsung Galaxy Alpha®?, available at
`https://www.samsung.com/za/support/mobile-devices/what-is-the-smart-scroll-feature-on-my-samsung-galaxy-
`alpha/#:~:text=Smart%20Scroll%E2%84%A2%201%20From%20the%20Home%20screen%2C%20Touch,conditio
`ns%20for%20Smart%20Scroll%20use.%20Then%20touch%20OK (last accessed July 8, 2021).
`4 Samsung Electronics Co., Ltd., Use motions and gestures to control your Galaxy phone, available at
`https://www.samsung.com/us/support/answer/ANS00086302/ (last accessed July 8, 2021).
`5 A true and correct copy of the May 7, 2021 letter is attached hereto as Exhibit 2.
`6 A true and correct copy of the May 19, 2021 letter is attached hereto as Exhibit 3.
`7 A true and correct copy of the May 25, 2021 letter is attached hereto as Exhibit 4.
`8 A true and correct copy of GTP’s Amended Infringement Contentions are attached as Exhibit 5
`9 Samsung sent a letter on June 21, 2021 alleging additional deficiencies with GTP’s AICs. A true and correct copy
`of the June 21, 2021 letter is attached hereto as Exhibit 6.
`10 GTP responded to Samsung’s June 21, 2021 letter on June 28, 2021 disagreeing with Samsung’s contentions. A
`true and correct copy of the June 28, 2021 letter is attached hereto as Exhibit 7.
`
`
`
`3
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`

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`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 8 of 19 PageID #: 691
`
`III. ARGUMENT
`
`The Motion seeks to litigate infringement on its merits and impose a standard that does not
`
`exist for infringement contentions. Infringement contentions do not provide a forum for litigation
`
`of the substantive issues, such as infringement; they merely streamline the discovery process.
`
`STMicroelectronics, Inc. v. Motorola, Inc., 308 F. Supp. 2d 754, 755 (E.D. Tex. 2004). All that
`
`P.R. 3-1 requires is “sufficient specificity to provide defendants with notice of infringement
`
`beyond that which is provided by the mere language of the patent[s] themselves.” DataTreasury
`
`Corp. v. Wells Fargo & Co., C.A., No. 2:06-CV-72-DF, 2010 U.S. Dist. LEXIS 110658, at *21
`
`(E.D. Tex. Sep. 13, 2010) (Folsom, J.) (citing STMicroelectronics, Inc., 308 F. Supp. 2d at 755).
`
`Infringement contentions “need not meet the level of detail required, for example, on a motion for
`
`summary judgment on the issue of infringement.” Realtime Data, LLC v. Packeteer, Inc., No.
`
`6:08-cv-144, 2009 U.S. Dist. LEXIS 73217, at *5 (E.D. Tex. 2009) (Love, J.). Under these
`
`principles, the Motion fails because GTP has complied with the local rules as detailed below.
`
`A.
`
`GTP’s AICs Comply With The Local Rules And Provide Fair And Adequate
`Notice Of GTP’s Infringement Theories By Charting Every Component Of
`The Accused Products To the Asserted Claims.
`
`
`
`GTP has complied with the Local Rules by charting every Accused Product, listing out the
`
`various components that meet the claim limitations of the Asserted Claims. Despite multiple meet
`
`and confers, Samsung continues to try to make this case about “features,” but it is not. The
`
`Asserted Claims comprise predominantly apparatus claims. The limitations of those apparatus
`
`claims claim components that have functional aspects. Part of the functional aspects is the
`
`components having the ability to respond to gestures. Samsung’s attempt to re-direct the Court to
`
`passive limitations of the claims is a veiled effort to force GTP to marshal all of the evidence that
`
`it might use to prove infringement at trial, in its infringement contentions. Marshalling all evidence
`
`
`
`4
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`

`

`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 9 of 19 PageID #: 692
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`of infringement is not required at this stage of the case. This type of “rigorous, pre-discovery
`
`analysis” has been rejected by the Court in STMicroelectronics and other cases. See
`
`STMicroelectronics, 308 F. Supp. 2d at 755 (“the Court is unwilling to pre-try the case at this
`
`procedural stage by conducting a highly detailed and rigorous analysis of the preliminary claim
`
`infringement contentions”); Realtime Data, LLC v. Packeteer, Inc., No. 6:08-cv-144, 2009 U.S.
`
`Dist. LEXIS 73217, at *2 (E.D. Tex. Aug. 18, 2009) (“Notice is the core function of P.R. 3-1
`
`contentions and although such’ contentions must be reasonably precise and detailed . . . they need
`
`not meet the level of detail required, for example, on a motion for summary judgment on the issue
`
`of infringement.’”).
`
`1.
`
`GTP’s AICs Comply With Local Patent Rule 3-1(c) And Provide Fair
`And Adequate Notice Of GTP’s Infringement Theory For Each
`Accused Product.
`
`
`
`The Local Patent Rules require “specific theories of infringement and representative
`
`examples of the alleged infringement so as to give defendants fair notice.” Orion IP, LLC v.
`
`Staples, Inc., 407 F. Supp. 2d 815, 817 (E.D. Tex. 2006) (Davis, J). This is precisely what GTP
`
`has already provided to Samsung. For each Asserted Claim and each Accused Product, GTP has
`
`provided a detailed table listing the components of the Accused Products by category and charted
`
`those components to the elements of each Asserted Claim, with a descriptive explanation. See e.g.
`
`Ex. 5.
`
`Infringement contentions are “not intended to require a party to set forth a prima facie case
`
`of infringement and evidence in support thereof.” Dynamic Applet Techs., LLC v. Mattress Firm,
`
`Inc., Case No. 4:17-cv-00860-ALM-KPJ, Dkt. No. 123, 2019 U.S. Dist. LEXIS 50125, at *8 (E.D.
`
`Tex. Mar. 26, 2019) (Johnson, J.). Yet Samsung claims entitlement to more, demanding GTP’s
`
`
`
`5
`
`

`

`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 10 of 19 PageID #: 693
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`trial evidence and arguments without discovery. Samsung plainly has notice of GTP’s
`
`infringement theories. See Dkt. No. 21. at pp. 6-8.
`
`Samsung’s complaints are premature attempts
`
`to
`
`litigate substantive
`
`issues of
`
`infringement, again without discovery. Samsung has ample notice from which to conduct and
`
`streamline discovery in this case—the exact purpose of infringement contentions. See Team Team
`
`Worldwide Corp. v. Acad., Ltd., No. 2:19-cv-00092-JRG-RSP, 2020 U.S. Dist. LEXIS 143339, at
`
`*14 (E.D. Tex. Aug. 11, 2020) (Payne, J.) (“While there are likely details that need to be
`
`developed, these developments will occur throughout discovery and claim construction. . . the
`
`Court will not resolve the substantive issue of infringement on pre-discovery contentions”);
`
`Vertical Computer Sys. v. Interwoven, Inc., 2013 U.S. Dist. LEXIS 207181, *5 (E.D. Tex. Sept.
`
`13, 2013) (Gilstrap, J.) (infringement contentions “are not meant to provide a forum for litigation
`
`of the substantive issues; they are merely designed to streamline the discovery process.”) (quoting
`
`STMicroelectronics, 308 F. Supp. 2d).
`
`GTP performed exhaustive pre-suit and post-filing investigations to identify Samsung’s
`
`infringing products. Only those products that GTP believed infringe, based on publicly available
`
`information, were listed in the IICs and AICs. GTP’s claim charts describe Samsung’s Accused
`
`Products on an element-by-element basis. They include where possible (1) an explanation of
`
`GTP’s infringement theory; (2) example website links—many from Samsung websites—that
`
`provide information on how the Accused Products satisfy each element of the claims; and (3)
`
`Samsung product documentation about how its products work. See Ex 1; Ex. 5. For example,
`
`GTP has provided the following excerpt regarding the Samsung Galaxy S6 Edge in its AICs:
`
`
`
`
`
`6
`
`

`

`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 11 of 19 PageID #: 694
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`
`
`Ex. 5 at p. 3. The table of Accused Products consists of the “Phone Model,” the “Cameras and/or
`
`Sensors,” “Light Sources,” “Processors or Systems-On-Chips,” and the “Year” the Accused
`
`Product was released. Id. GTP also provided a claim chart that maps the components from the
`
`table of Accused Products to the elements of the Asserted Claims:
`
`
`
`
`
`7
`
`

`

`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 12 of 19 PageID #: 695
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`Ex. 5, Ex. C at p. 6 (annotated). As boxed in red, GTP mapped the “Processors or Systems-On-
`
`Chips” and “Cameras and/or Sensor” elements from the Accused Products table to claim element
`
`8[b]. Id. GTP also included a brief explanation for the charted claims. See id. If a claim element
`
`referred a “gesture” that was detected by the components (boxed in green), GTP listed applications
`
`on the Accused Products that use gestures to which the recited components respond. Id.
`
`Additionally, GTP provided sample website links (boxed in orange) that explain how gestures are
`
`used by the Accused Products within the cited applications. Id. However, the applications that
`
`use “gestures” are not the Accused Products. GTP’s claims are to apparatuses (devices) that claim
`
`components of the devices, and GTP has identified those components in its claim charts.
`
`2.
`
`GTP’s AICs Provide Fair And Adequate Notice For Every Charted
`Claim.
`
`
`
`Samsung’s argument that “GTP’s AICs only provide adequate notice for one claim” is
`
`plainly wrong. The Motion at pp. 9-10. For each of the Accused Products, GTP repeated the
`
`process explained above of identifying components and mapping the components to the Asserted
`
`Claims. Supra. Samsung’s argument that GTP provided notice of only “one claim” is, again,
`
`anchored on mistaken notion that GTP is accusing software “features” of infringement. See id.
`
`To reiterate, the charts asserted by GTP are predominantly to apparatuses (devices), not
`
`applications. And GTP’s AICs chart every the infringing components of every accused product to
`
`every element of every Asserted Claim. See e.g., Ex. 5.
`
`GTP has identified, for certain claim elements, that software may be involved, but only as
`
`a supplement to its infringement contentions. GTP has never invoked the Court’s procedure for
`
`identifying a limitation as a purely software limitation. GTP has simply alerted Samsung and,
`
`through this brief, the Court that non-publicly available source code may additionally inform how
`
`
`
`8
`
`

`

`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 13 of 19 PageID #: 696
`
`the Accused Products infringe the claims. Although the Court has recognized that the lack of
`
`source availability may affect a plaintiff’s ability to provide fulsome infringement contentions,
`
`GTP has not invoked that protect and, instead, has provided clear and complete infringement
`
`contentions. See generally Gree, Inc. v. Supercell Oy, No. 2:19-cv-00311-JRG-RSP, 2021 U.S.
`
`Dist. LEXIS 26073, at *11 (E.D. Tex. Feb. 11, 2021) (Payne, J.) (citing Am. Video Graphics, L.P.
`
`v. Elec. Arts, Inc., 359 F. Supp. 2d 558, 560 (E.D. Tex. 2005) (Davis, J.)) (“For example, in
`
`software cases, the Court has recognized the pragmatic limitation on infringement contentions
`
`when plaintiffs do not have the necessary access to non-public software, which is needed to make
`
`detailed infringement contentions.”).
`
`3.
`
`Samsung’s Fundamental Misunderstanding Of The Claims Does Not
`Force GTP To Chart Features As The Accused Products.
`
`
`
`As explained above, the claims are about devices, not applications and not gestures. But
`
`Samsung fails to understand this simple fact, seeking myopically to require GTP to list every
`
`possible gesture that could be detected by components of the Accused Products, even though that
`
`is irrelevant. The claims simply require that the components have the capability to perform certain
`
`functions based upon a gesture. Nothing more.
`
`When discussing claimed components that respond to gestures, GTP identifies the
`
`components and provides an exemplary list of applications on the Accused Products through which
`
`those components respond to gestures. Additionally, GTP has provided example links to webpages
`
`that further explain this process (supra p. 7, orange box). See e.g., Ex. E. This is sufficient notice
`
`under the Local Patent Rules. See Computer Acceleration Corp., 503 F. Supp. 2d at 822; Sol IP,
`
`LLC v. AT&T Mobility, LLC, 2020 U.S. Dist. LEXIS 68468, at *18 (E.D. Tex. Apr. 20, 2020)
`
`(Payne, J.) (“[t]his disclosure is intended to put defendants on reasonable notice of what products
`
`
`
`9
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`

`

`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 14 of 19 PageID #: 697
`
`are accused.”) (quoting Tivo Inc. v. Samsung Elecs. Co., Case No. 2:15- cv-1503, 2016 U.S. Dist.
`
`LEXIS 96299, at *3 (E.D. Tex. July 22, 2016) (Gilstrap, J.)).
`
`4.
`
`GTP Has Not Used Representative Products.
`
`
`
`Samsung’s entire argument on this point is based on the same mistaken premise as their
`
`previous arguments, namely that GTP is accusing features as opposed to products. It plainly is
`
`not. GTP accused Samsung products. GTP has provided a claim chart for each individual Accused
`
`Product. As discussed above, part of those charts includes a reference to applications from which
`
`the components of the Accused Products respond to gestures. Nothing more is required. And
`
`nothing in the charts is representative.
`
`Samsung’s demolition of its own strawman affects nothing. The claims are to apparatuses,
`
`and GTP’s charts identify and chart every Samsung device accused of infringement.
`
`B.
`
`GTP’s Addition Of Two Inadvertently Omitted Products And Reference To A
`Non-Samsung Application Should Not Be Stricken.
`
`
`
`The AIC’s added two Samsung products to the Accused Product list because they were
`
`unintentionally omitted from the IICs. The two products were added to GTP’s AICs promptly
`
`upon discovery of their omission. Additionally, GTP’s reference to a non-Samsung branded
`
`application is irrelevant to whether the infringement contentions are complete. It is GTP’s
`
`contention that this non-Samsung application is pre-loaded onto the Accused Products and that the
`
`accused components of the Accused Products respond to gestures used within that application.
`
`The fact that the application is a third party application is irrelevant.
`
`
`
`
`
`10
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`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 15 of 19 PageID #: 698
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`1.
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`Good Cause Existed For GTP’s Addition Of One Phone And One
`Tablet.
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`
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`GTP inadvertently omitted the Samsung Galaxy S5 and the Samsung Galaxy Tab A 8.0
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`(2019) from the IICs. But GTP did include variants of those popular devices—the Samsung
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`Galaxy S5 Neo and the Samsung Galaxy Tab A Kids 8.0 (2019)—in the IICs. See Ex. 1 at pp. 4,
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`12-13. GTP’s complaint accuses the entire Galaxy S and Galaxy Tab product lines of
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`infringement. See Dkt. No. 1 at pp. 5-6. And both the IICs and AICs accused multiple variations
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`of the Galaxy S phones and Galaxy Tab A 8.0 tablets. Ex. 1 at pp. 2-16; Ex. 5 at pp. 2-18. GTP
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`removed the Samsung Galaxy S5 Neo on receiving information from Samsung that it was never
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`sold in the United States, and replaced it with the Samsung Galaxy S5, which was sold in the
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`United States. Ex. 1 at p. 4; Ex. 5 at p. 2. GTP also added the Samsung Galaxy Tab A 8.0 (2019)
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`upon discovering its inadvertent omission. Ex. 5 at p. 3. The Court has previously held that the
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`inadvertent omission of materials from contentions combined with diligence in fixing the omission
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`weighs in favor of allowing amendment. See Estech Sys. v. Target Corp., No. 2:20-cv-00123-
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`JRG-RSP, 2020 U.S. Dist. LEXIS 150768, at *7 (E.D. Tex. Aug. 20, 2020) (Payne, J.) (granting
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`leave to amend infringement contentions to include an entire chart where the omission was a
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`“simple oversight and mistake.”); Thomas Swan & Co. v. Finisar Corp., No. 2:13-cv-178-JRG,
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`2014 U.S. Dist. LEXIS 194431, at *3-4 (E.D. Tex. Apr. 29, 2014) (Gilstrap, J.) (the inadvertent
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`omission of an invalidity chart where the omitted chart was served “just weeks” after the original
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`contentions supported good cause to amend); Lunareye, Inc. v. Airiq, Inc., No. 9:07CV-113, 2010
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`U.S. Dist. LEXIS 160718, at *6- 7 (E.D. Tex. Apr. 1, 2010) (Clark, J.) (“the inadvertent omission
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`of an entire set of contentions against a defendant for an eight-day period supported good cause to
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`allow amendment.”). Here, GTP seeks to add only two products to the infringement contentions.
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`Therefore, GTP respectfully submits that the Samsung Galaxy S 5 and the Samsung Galaxy Tab
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`11
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`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 16 of 19 PageID #: 699
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`A 8.0 (2019) should remain part of the AICs, or in the alternative, respectfully requests leave to
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`add these two devices.
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`2.
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`GTP’s Reference To A Non-Samsung Branded Application Should
`Not Be Stricken.
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`
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`Samsung requests that the Court strike GTP’s reference to the Facebook application “Live
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`Masks Track/Apply” from GTP’s AICs because it is a “non-Samsung feature.” The Motion at p.
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`14. Whether “Live Masks Track/Apply” is a Samsung-branded feature is irrelevant. Samsung
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`ignores the fact that Facebook is a developer for Samsung, and the referenced Facebook
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`application is pre-installed on the Accused Products.11 In fact, many users are unable to uninstall
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`the pre-installed Facebook application from the Accused Products.12 The Accused Products use
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`the Facebook application and the feature “Live Masks Track/Apply” to track users by their facial
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`features and gestures.13
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`C.
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`Samsung Is Not Materially Prejudiced Because The AICs Comply With The
`Local Rules.
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`
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`“Striking infringement contentions is an extreme decision comparable to determining
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`‘whether evidence should be excluded for discovery violations.’” Team Worldwide Corp., No.
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`2:19-cv-00092-JRG-RSP, at *10 (quoting Eolas Tech. Inc. v. Amazon.com, Inc., 6:15-cv-1038,
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`2016 WL 7666160, at *1 (E.D. Tex. Dec. 5, 2016) (Schroeder III, J)). “Courts are thus hesitant to
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`strike contentions without evidence of unreasonable delay and prejudice.” Id. Samsung has not
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`11 SamMobile, Facebook being pre-installed on Galaxy phones is neither new nor a major problem, available at
`https://www.sammobile.com/2019/01/09/facebook-app-pre-installed-galaxy-phones-not-a-problem
`(last accessed
`July 13, 2021)
`12 Time USA LLC, Some Samsung Users Are Finding They Can't Delete Facebook From Their Phones, available at
`https://time.com/5497200/samsung-facebook-app-delete/ (last accessed July 13, 2021)
`13 Insider, Inc., Facebook is copying Snapchat again, available at https://www.businessinsider.com/facebook-live-
`masks-snapchat-like-selfie-video-filters-2016-10 (last accessed July 13, 2021)
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`12
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`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 17 of 19 PageID #: 700
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`been prejudiced with regard to GTP’s infringement theories because GTP has provided more than
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`sufficient information to satisfy the Local Patent Rules. See Ex. 1. When Samsung raised its
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`issues with the IICs, the parties held multiple meet and confer teleconferences from which GTP
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`voluntarily amended its infringement contentions. See Ex. 5. As explained above, the AICs
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`comply with the Local Patent Rules, placing Samsung on notice of GTP’s infringement. On July
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`6, 2021, Samsung served its invalidity and subject matter contentions, which included 110 claim
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`charts that clearly evidence Samsung is aware of what is accused of infringement. Accordingly,
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`Samsung cannot demonstrate no prejudice.
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`D.
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`In The Alternative, GTP Should Be Granted Leave To Amend.
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`Samsung has sufficient notice of GTP’s infringement theories and the scope of this case,
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`as discussed supra. But if the Court holds otherwise, GTP respectfully requests leave to amend
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`its infringement contentions to respond to the Court’s holding.
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`IV.
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`CONCLUSION
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`For the foregoing reasons, GTP respectfully submits that the Motion should be denied in
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`its entirety.
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`13
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`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 18 of 19 PageID #: 701
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`Dated: July 14, 2021
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`
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`
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`Respectfully submitted,
`
`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
`
`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
`
`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
`
`Attorneys for Plaintiff
`Gesture Technology Partners, LLC.
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`14
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`Case 2:21-cv-00040-JRG Document 54 Filed 07/14/21 Page 19 of 19 PageID #: 702
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on July 14, 2021 the undersigned caused a copy of
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`the 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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`By: /s/ Fred I. Williams
`Fred I. Williams
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`15
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