Case 2:21-cv-00040-JRG Document 57 Filed 07/28/21 Page 1 of 8 PageID #: 930
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`IN THE UNITED STATES DISTRICT
`COURT FOR THE EASTERN DISTRICT
`OF TEXAS MARSHALL DIVISION
`
`
`GESTURE TECHNOLOGY PARTNERS,
`LLC,
`
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS AMERICA,
`INC.,
`
`Defendants.
`
`
`
`PLAINTIFF GTP’S SUR-REPLY TO SAMSUNG DEFENDANTS’ MOTION TO
`STRIKE PLAINTIFF’S INFRINGEMENT CONTENTIONS AND/OR COMPEL
`INFRINGEMENT CONTENTIONS COMPLYING WITH THE
`COURT’S PATENT RULES
`
`Plaintiff
`
`v.
`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
`
`
`Defendants.
`
`
`JURY TRIAL DEMANDED
`
`C.A. NO. 2:21-cv-00040-JRG
` LEAD CONSOLIDATED CASE
`
`C.A. NO. 2:21-cv-00041-JRG
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`

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`Case 2:21-cv-00040-JRG Document 57 Filed 07/28/21 Page 2 of 8 PageID #: 931
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`I.
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`INTRODUCTION
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`GTP has provided Defendants Samsung Electronics Co. Ltd. and Samsung Electronics
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`America, Inc. (collectively, “Samsung”) fair and adequate notice of its infringement theories from
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`the day it served its Initial Infringement Contentions (“IIC”). After numerous meet and confers
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`and at Samsung’s request, GTP served Amended Infringement Contentions (“AIC”) to resolve any
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`potential ambiguity that Samsung saw in GTP’s IICs. Yet Samsung continues to ask for more and
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`attempts to make this case about something it is not. GTP has repeatedly informed Samsung that
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`the features used by the various infringing phones and tablets (“Accused Products”) are not part
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`of GTP’s infringement theories. GTP has identified the hardware components relevant to its
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`infringement theory for each asserted method and apparatus claim (the “Asserted Claims”). GTP
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`has also provided Samsung with example articles discussing how the hardware in the Accused
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`Products detects gestures or other control commands using various features. GTP does not need
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`to provide additional documentation on the features because the features themselves are not part
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`of GTP’s infringement theories.
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`GTP has properly and adequately charted every Asserted Claim. Samsung blatantly
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`misquotes the Complaint in a smoke-and-mirror effort to divert the Court’s attention from the issue
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`at hand. In its complaint, GTP identified the Accused Products as having “features including, but
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`not limited to, at least the following: Gesture Detection . . . Smile Shot (the ‘Features’)” that “drive
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`the popularity and sales of the Accused Products.” (Dkt. No. 1 at ¶¶ 25-26). GTP did not, and has
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`not, accused the features of infringement. GTP has never defined the term “Accused Features”—
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`it is a red herring offer by Samsung in an effort to waste judicial and party resources and time.1
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`1 Samsung cites to two typographical errors in the Complaint that reference “Accused Features,”
`(Reply at p.1 and fn. 2 (citing Dkt. No. 1 at ¶¶ 25, 46 )) but the term “Accused Features” is not a
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`1
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`Case 2:21-cv-00040-JRG Document 57 Filed 07/28/21 Page 3 of 8 PageID #: 932
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`II. ARGUMENT
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`The Motion seeks to makes the case about features, but it is not. GTP has not conceded
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`any position to Samsung but, rather, has adequately charted every claim and provided fair notice
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`of its infringement theories. Additionally, GTP’s AICs are not required to identify “gestures”
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`because the infringement theories are not based on “gestures,” and GTP has shown good cause to
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`add the two originally omitted Samsung products to its AICs. The AICs comply with the Local
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`Patent Rules, and the Motion should be denied as explained below.
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`A.
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`The AICs Properly Accuse And Chart The Asserted Method Claims.
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`GTP’s AICs satisfy and comply with all of the applicable provisions and requirements
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`regarding a method patent, pursuant to Local Patent Rule 3-1 (hereinafter “P.R. 3-1”). Rule 3.1
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`requires the party alleging infringement of a method patent to provide information that includes
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`“each method or process… identified by name, if known, or by any product, device, or apparatus
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`which when used, allegedly results in the practice of the claimed method or process.” (See P.R. 3-
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`1). GTP’s AICs comply with the requirements of P.R. 3-1 by identifying the components, by
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`name, and the manner in which they perform the claimed methods. (See Dkt. No. 54-5, Ex. B pp.
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`1-6, 11-30; Ex. C at pp. 5-9; Ex. D at pp. 1-6, 10-15). Where necessary, GTP identified Samsung
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`features, by name, that use gestures to meet the implemented methods. See Id. Ex. C. pp. 1-2
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`(“The gestures that can be determined by the Accused Products include, but are not limited to
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`gestures associated with: Gesture Detection . . . Beauty Mode, and Portrait Mode.”)
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`As required by P.R. 3-1, GTP’s AICs identify each method step, or claim element, of the
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`Asserted Claims, that Samsung has used, and continues to use, in manufacturing and selling the
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`defined term in the complaint. See Dkt. No. 1. In every other instance when referencing Samsung
`features, GTP uses the defined term “Features.” See Dkt. No. 1 at ¶¶ 26, 41, 56, and 71.
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`2
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`Case 2:21-cv-00040-JRG Document 57 Filed 07/28/21 Page 4 of 8 PageID #: 933
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`Accused Products that implement the various patented methods. The Asserted Claims clearly set
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`forth the sequencing of steps and the components used in performing the claimed methods. GTP
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`should not be further obligated to explain those sequencing of steps and claimed components to
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`Samsung. For method claims, P.R. 3-1 requires identification of the “accused method” name or
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`the equipment used in performing the steps of the “accused method,” if known. GTP provided
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`both in its AICs. See Whipstock Servs. v. Schlumberger Oilfield Servs., No. 6:09-cv-113, 2010
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`U.S. Dist. LEXIS 1395, at *6 (E.D. Tex. Jan. 8, 2010) (Love, J.) (denying defendant’s motion to
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`strike plaintiff’s infringement contentions and finding that plaintiff adequately charted the method
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`claims under the local rules.).
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`B.
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`GTP’s AICs Properly Provide Fair And Adequate Notice Of GTP’s
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`Infringement Theory For Each Accused Product.
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`GTP has complied with the Local Rules by charting every Accused Product. Samsung’s
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`continuing effort to make this case about “Accused Features” is a red herring that seeks to waste
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`judicial and party resources and time. As discussed above, GTP has never defined the term
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`“Accused Features.” That is a term that Samsung seeks to force into GTP’s infringement theories.
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`Despite Samsung’s reply argument, GTP cannot concede something it has never done. GTP’s
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`Complaint defines the term “Features” as shown below:
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`3
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`Case 2:21-cv-00040-JRG Document 57 Filed 07/28/21 Page 5 of 8 PageID #: 934
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`Dkt. No. 1, ¶ 25 (annotated). To the extent GTP’s AIC’s reference the Features, it is only to
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`identify gestures or other control commands used by said Features. See e.g., Dkt. No. 54-5, Ex. C
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`at p. 6 (“The gestures that can be determined by the Accused Products include, but are not limited
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`to, gestures associated with: Gesture Detection . . . and Portrait Mode.). As discussed in the
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`Response, GTP has listed every hardware component and charted them in its AICs. Resp. at p. 5-
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`8. Only were appropriate, GTP has made the foregoing reference to gestures or other similar
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`commands. GTP has complied with the Local Rules.
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`GTP has not conceded that it failed to provide documentation for each Feature because it
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`is under no obligation to do so. As GTP has reiterated to Samsung numerous times, this case is
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`not about “Accused Features” because it is about the combination of hardware components and
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`software implementation that meet the limitations of the Asserted Claims. All of the links provided
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`by GTP in its AICs are merely examples of Samsung articles discussing how the Features use
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`gestures or other commands and interact with the components from the Accused Products that are
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`charted with respect to the elements of each claim. Furthermore, Samsung’s allegation that GTP
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`has provided “five more” new links is inaccurate. Reply at p. 3. Two of the links provided in the
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`Response were also cited in the Complaint. Dkt. No. 1 at fn. 3-4; Dkt. No. 54 at fn. 3-4. The
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`remaining three links discussing “Live Masks Track/Apply” are equally accessible to Samsung
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`with a simple search engine query. Resp. at p. 12. GTP is under no obligation to hand-walk
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`Samsung through the development of its defense theories.
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`C.
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` GTP’s AICs Do Not Need To Identify Any Claimed Gestures Because The
`Claims Are Not Directed Towards Specific Gestures.
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`The Asserted Claims are about devices, not gestures. The Complaint does not rely on
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`
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`“Accused Features” to allege infringement of the patents in this case. To the extent gestures or
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`commands are used by the Features, GTP has properly referenced those gestures or commands in
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`4
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`Case 2:21-cv-00040-JRG Document 57 Filed 07/28/21 Page 6 of 8 PageID #: 935
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`its AICS. Apparently, Samsung wants GTP to list every permutation of any gesture or other
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`command that could possibly be used by the Features in Samsung’s products. That level of detail
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`is not required because GTP’s infringement theories, and the claims themselves ,do not require
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`specific gestures or commands for infringement. Nevertheless, even if GTP’s infringement
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`theories relied on various individual gestures, which they do not, GTP cannot list all of the various
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`gestures or commands without discovery, nor is it required to do so in its infringement contentions.
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`Gree, Inc. v. Supercell Oy, No. 2:19-cv-00311-JRG-RSP, 2021 U.S. Dist. LEXIS 26073, at *11
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`(E.D. Tex. Feb. 11, 2021) (Payne, J.) (quoting Orion IP, LLC v. Staples, Inc., 407 F. Supp. 2d
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`815, 817 (E.D. Tex. 2006) (Davis, J)) (“[A] plaintiff need not provide evidence for ‘every possible
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`manifestation of the alleged infringement’ in its infringement contentions.”)
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`D.
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`GTP Has Shown Good Cause To Add The Two Inadvertently Omitted
`Products To Its AICs.
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`GTP inadvertently omitted the Samsung Galaxy S5 and the Samsung Galaxy Tab A 8.0
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`
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`(2019) from its IICs. The omission was discovered after confirming information from Samsung
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`that certain variations of these products were not sold in the United States. Upon discovery of the
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`omission, GPT promptly added the two devices to its AICs. Samsung is aware that this was an
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`accidental omission by GTP, it cannot show any prejudice by the addition of the two devices at
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`this stage, and GTP has demonstrated good cause. GTP respectfully requests that the Court permit
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`the Samsung Galaxy S5 and the Samsung Galaxy Tab A 8.0 (2019) to remain part of the AICs, or
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`in the alternative, respectfully requests leave to supplement with these two devices.
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`III.
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`CONCLUSION
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`For the foregoing reasons, GTP respectfully submits that the Motion should be denied.
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`5
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`Case 2:21-cv-00040-JRG Document 57 Filed 07/28/21 Page 7 of 8 PageID #: 936
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`Dated: July 28, 2021
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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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`Case 2:21-cv-00040-JRG Document 57 Filed 07/28/21 Page 8 of 8 PageID #: 937
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on July 28, 2021 the undersigned caused a copy of
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`the foregoing document to be served on all counsel of record, via the Court’s CM/ECF system,
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`pursuant to the Federal Rules of Civil Procedure.
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`By: /s/ Fred I. Williams
`Fred I. Williams
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`7
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