Case 2:21-cv-00040-JRG Document 56 Filed 07/21/21 Page 1 of 8 PageID #: 922
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CASE NO. 2:21-cv-00040-JRG
`(Lead Case)
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`JURY TRIAL DEMANDED
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`CASE NO. 2:21-cv-00041-JRG
`(Member Case)
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`JURY TRIAL DEMANDED
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
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`Plaintiff
`
`v.
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`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
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`Defendants.
`
`
`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
`
`SAMSUNG DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO STRIKE
`PLAINTIFF’S INFRINGEMENT CONTENTIONS AND/OR COMPEL
`INFRINGEMENT CONTENTIONS COMPLYING WITH THE COURT’S PATENT
`RULES
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`

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`Case 2:21-cv-00040-JRG Document 56 Filed 07/21/21 Page 2 of 8 PageID #: 923
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`I.
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`INTRODUCTION
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`For three months, Samsung has attempted unsuccessfully to obtain fair and adequate notice
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`of GTP’s theory of infringement as to each Accused Instrumentality, pursuant to the Court’s local
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`rules. GTP’s Response concedes that its Amended Infringement Contentions (“AICs”) do not
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`identify GTP’s theory of infringement for each Asserted Claim, do not provide documentation or
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`other explanation of how each Accused Feature when used by the Accused Products is alleged to
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`infringe, and do not identify any claimed “gesture” (even as an example) allegedly performed in
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`connection with each Accused Feature. GTP excuses these omissions by arguing that because the
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`Asserted Claims are “predominantly” apparatus claims, and GTP now purports not to accuse any
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`features of infringement, GTP has no obligation to identify its theory of infringement for each
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`Accused Feature with respect to each Asserted Claim. GTP’s position is untenable.
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`GTP asserts many method claims, which allegedly implicate the Accused Features when
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`used by the Accused Products. GTP cannot ignore the method claims to justify failure to comply
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`with the requirements of the local rules. In its Complaint, GTP itself designated the features at
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`issue as “Accused Features,” which when used by the Accused Products allegedly infringe the
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`Asserted Patents. Dkt. No. 1 ¶ 25. GTP cannot reasonably argue now that the “Accused Features”
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`are somehow not accused, such that its disclosure obligations under the local rules do not apply.
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`Moreover, GTP’s refusal to provide fair and adequate notice of its theory of infringement as to
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`each Accused Instrumentality (i.e., Accused Feature) has frustrated Samsung’s ability to provide
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`timely discovery and prepare its defenses. Despite diligent efforts, Samsung is unable to ascertain
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`GTP’s theory as to how each Asserted Claim is infringed when each Accused Feature is used by
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`the Accused Products. More is required of GTP than it has been willing to provide.1
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`1 GTP cites no supporting authority that Samsung’s Motion is discovery-related under the Court’s
`Joint Discovery Order. This Court regularly rules on similar motions exceeding seven pages. See,
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`-1-
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`Case 2:21-cv-00040-JRG Document 56 Filed 07/21/21 Page 3 of 8 PageID #: 924
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`II.
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`ARGUMENT
`A.
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`GTP’s Response Concedes That It Has Not Properly Accused or Charted the
`Asserted Method Claims
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`GTP argues that because the “Asserted Claims comprise predominantly apparatus claims,”
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`GTP is somehow excused from satisfying the local rules as to the asserted method claims. Resp.
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`at 4 (emphasis added). GTP fails to provide a single authority in support. GTP asserts 39 method
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`claims across three of the four Asserted Patents.2 For each asserted method claim, GTP’s AICs
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`fail to identify how the Accused Features “when used allegedly result in the practice of the claimed
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`method or process” as required by Patent Rule 3-1(c). Instead of addressing this deficiency, GTP’s
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`Response instead focuses on an uncontested issue—that GTP has provided sufficient notice as to
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`the relevant components of the Accused Products. But GTP’s listing of components does not
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`excuse its further obligation to identify specifically where each element of each asserted claim is
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`found within “each . . . process, method, [or] act” as required by P.R. 3-1(b). By GTP’s admission,
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`its AICs are deficient at least as to the asserted method claims. At a minimum, GTP’s AICs as to
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`those claims should be supplemented to comply or be struck for non-compliance.
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`B.
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`GTP’s Response Concedes That GTP Has Not Provided Fair and Adequate
`Notice of GTP’s Theory of Infringement for Each Accused Feature
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`GTP’s AICs fail to provide fair and adequate notice of GTP’s theory of infringement for
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`each Accused Instrumentality as required by the Court’s local rules. Accused Instrumentalities
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`include “each accused apparatus, product, device, process, method, act, or other instrumentality.”
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`e.g., Scorpcast, LLC v. Boutique Media, No. 20-cv-00193, Dkt. Nos. 108, 111, 114, 116, 118, 120,
`152 (E.D. Tex.).
`2 Asserted method claims include: Claims 1-6, 8, 9, 21-26, 28, and 30 of the ’079 Patent; Claims
`8, 9, 11, and 12 of the ’949 Patent; and Claims 1-4, 6, 14-22, 25-28, and 30 of the ’431 Patent.
`While GTP asserts no method claims for the ’924 Patent, it alleges Samsung infringes that patent
`by “advising or directing end users and other third-parties to use the Accused Features in the
`Accused Products in an infringing manner.” Dkt. No. 1 ¶ 46 (emphasis added).
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`-2-
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`Case 2:21-cv-00040-JRG Document 56 Filed 07/21/21 Page 4 of 8 PageID #: 925
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`P.R. 3-1(b) (emphasis added). Each of the 18 “Accused Features” identified in GTP’s Complaint
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`(and that GTP has not voluntarily withdrawn) is unique, having its own individual functions and
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`operation as used by the Accused Products. Yet GTP’s AICs fail to describe how each Accused
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`Feature, when used by the Accused Products, allegedly infringes each Asserted Claim.
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`GTP’s Response does not dispute these critical deficiencies but instead attempts to excuse
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`them by asserting that “GTP is [not] accusing software ‘features’ of infringement.” Resp. at 8.
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`GTP’s argument is belied by its own Complaint explicitly designating these features as “Accused
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`Features” alleged to infringe when used by the Accused Products.3 But even aside from GTP’s
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`attempt to distance itself here from the live allegations in its Complaint, each of these software
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`features constitutes or involves a “process, method, or act” that must be charted as to each Asserted
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`Claim (including the method claims) under P.R. 3-1(b). Unless and until GTP formally withdraws
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`all infringement allegations with respect to the Accused Features, the Court should compel GTP
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`to provide AICs compliant with the local rules or strike those allegations altogether.
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`Further, GTP’s Response concedes it has not identified documentation for each of the 18
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`Accused Features, i.e., for each Accused Instrumentality. The only documentation in the AICs as
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`to the Accused Features, across all of the Asserted Claims, consists of the same three website links.
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`Neither the links nor anything else in the AICs specify what Accused Features the links allegedly
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`relate to or how any Accused Feature, when used by the Accused Products, allegedly infringes
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`any Asserted Claim. See Motion at 8-9. GTP’s Response provides, for the first time, five more
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`3 GTP’s Complaint lists the features under the heading “Examples of Samsung’s Marketing of the
`Accused Features.” Dkt. No. 1 ¶ 25 (emphasis added). GTP’s Complaint accuses Samsung of
`infringing the ’924 Patent, for example, by “advising or directing end users and other third-parties
`to use the Accused Features in the Accused Products in an infringing manner.” Dkt. No. 1 ¶ 46
`(emphasis added). Even GTP’s Response asserts that “components and their related software
`allow the detection of detect [sic] numerous types of gestures.” Resp. at 2 (emphasis added).
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`-3-
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`Case 2:21-cv-00040-JRG Document 56 Filed 07/21/21 Page 5 of 8 PageID #: 926
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`links describing some, but not all, of the Accused Features and how they relate to the Asserted
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`Claims. See Resp. at nn. 3-4, 11-14. Notably, GTP did not include any of these newly-identified
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`links in its Complaint, its PICs, its AICs, or in response to Samsung’s repeated requests. The fact
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`that GTP is able to provide this further detail to explain how some Accused Features allegedly
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`infringe the Asserted Claims highlights the failure of the AICs to provide the requisite detail with
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`respect to each Accused Feature and each Asserted Claim. Resp. at 3. While GTP’s refusal to
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`provide this information for all of the Accused Features remains unexplained (as is its refusal to
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`voluntarily provide this information for any of the Accused Features before requiring Samsung to
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`involve the Court), “The Patent Rules demonstrate high expectations as to plaintiffs’ preparedness
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`before bringing suit.” Connectel, LLC v. Cisco Sys., 391 F. Supp. 2d 526, 527-28 (E.D. Tex. 2005)
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`(citation omitted). GTP’s deficient AICs should be supplemented to comply or struck.
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`C.
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`GTP’s AICs and Response Fail to Identify Any Claimed “Gesture”
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`GTP argues that the “asserted claims do not claim ‘gestures’—they claim only devices that
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`have components that respond to ‘gestures.’” Resp. at 1. From this assertion, GTP posits that it
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`need not identify any “gesture” that purportedly causes the Accused Features, when used by the
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`Accused Products, to infringe the claims. However, as detailed in Samsung’s Motion, three of the
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`Asserted Patents have Asserted Claims explicitly requiring the recited devices to determine that a
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`“gesture” has been performed. See Mot. at 10-12. Thus, GTP must at least identify a purported
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`“gesture” for each Accused Feature. Yet, GTP refuses to do so.
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`For example, none of GTP’s website links, whether in its AICs or its Response, identifies
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`any “gesture” for the Iris Scan Unlock, Bixby Vision, or QR Codes Accused Features, nor do they
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`identify how these Accused Features determine any gesture as the Asserted Claims require. After
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`diligent investigation, Samsung is unable to discern what possible “gesture” can be determined for
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`a human eye, a restaurant in the world, or a barcode such that these Accused Features, when used
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`-4-
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`Case 2:21-cv-00040-JRG Document 56 Filed 07/21/21 Page 6 of 8 PageID #: 927
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`by the Accused Products, allegedly satisfy the Asserted Claims. GTP’s failure to provide fair and
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`adequate notice of its theory of infringement exists similarly for the remainder of the 18 Accused
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`Features. As a result, Samsung is left to speculate regarding the claimed “gesture” with respect to
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`each Accused Feature and each Asserted Claim.
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`GTP’s arguments that Samsung is “demanding GTP’s trial evidence and arguments without
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`discovery” and “requir[ing] GTP to list every possible gesture that could be detected” (Resp. at 5-
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`6, 9) are red herrings. Samsung merely requests that GTP be ordered to comply with the local
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`rules by identifying “at least one ‘gesture’ for each Accused Feature” to provide “reasonable notice
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`of GTP’s theory of infringement for each Accused Feature as used by the Accused Products.”
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`Mot. at 12, 15. It is revealing that GTP must distort Samsung’s request for relief and supporting
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`arguments rather than confront their merits.
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`D.
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`GTP’s Has Not Shown Good Cause to Accuse Two Additional Products
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`GTP had a duty to limit its allegations to products it reasonably believes infringe based on
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`diligent pre-suit investigation. The two devices GTP seeks to add, the Galaxy S5 and the Galaxy
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`Tab A 8.0, are both flagship models. GTP’s Complaint, which accuses the entire Galaxy S and
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`Galaxy Tab product lines, and GTP’s PICs, which accused variants of both products, show that
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`GTP was or should have been aware of both models when it served its PICs. GTP has not shown
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`good cause to allow the amendments now. GTP amended its PICs to include these models only
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`after Samsung informed GTP that certain other Accused Products were not sold in the United
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`States, and until GTP’s Response it had never sought leave to add these models as the local rules
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`require, evidencing a lack of diligence that undermines GTP’s arguments as to good cause.
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`III. CONCLUSION
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`Accordingly, Samsung respectfully requests that the Court compel GTP to supplement its
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`AICs to comply with Patent Rule 3-1(c) or strike all allegations that do not comply.
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`-5-
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`Case 2:21-cv-00040-JRG Document 56 Filed 07/21/21 Page 7 of 8 PageID #: 928
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`DATED: July 21, 2021
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`Respectfully submitted,
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`
`By: /s/ Christopher W. Kennerly
`Christopher W. Kennerly (TX Bar No. 00795077)
`chriskennerly@paulhastings.com
`Radhesh Devendran (pro hac vice)
`radheshdevendran@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, CA 94304
`Telephone: (650) 320-1800
`Facsimile: (650) 320-1900
`
`Allan M. Soobert
`allansoobert@paulhastings.com
`PAUL HASTINGS LLP
`2050 M Street NW
`Washington, D.C. 20036
`Telephone: 202-551-1700
`Facsimile: 202-551-1705
`
`Elizabeth L. Brann
`elizabethbrann@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Telephone: (858) 458-3000
`Facsimile: (858) 458-3005
`
`Robert Laurenzi
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 318-6000
`Facsimile: (212) 319-4090
`
`Melissa R. Smith (TX Bar No. 24001351)
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`melissa@gillamsmithlaw.com
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`Attorneys for Defendants Samsung Electronics
`Co., Ltd and Samsung Electronics America, Inc.
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`-6-
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`Case 2:21-cv-00040-JRG Document 56 Filed 07/21/21 Page 8 of 8 PageID #: 929
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document was filed
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`electronically in compliance with Local Rule CV-5 on July 21, 2021. As of this date, all counsel
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`of record had consented to electronic service and are being served with a copy of this document
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`through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A).
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-7-
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