Case 2:21-cv-00040-JRG Document 88-1 Filed 09/30/21 Page 1 of 4 PageID #: 2083
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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
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`v.
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`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
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`Defendants.
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`GESTURE TECHNOLOGY
`PARTNERS, LLC,
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`Plaintiff
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`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`DECLARATION OF DAVID M. FOX IN SUPPORT OF DEFENDANTS SAMSUNG
`ELECTRONICS CO., LTD. AND SAMSUNG ELECTRONICS AMERICA, INC.’S
`MOTION FOR A PROTECTIVE ORDER
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`Case 2:21-cv-00040-JRG Document 88-1 Filed 09/30/21 Page 2 of 4 PageID #: 2084
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`I, David M. Fox, hereby declare as follows:
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`1.
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`I am an attorney at the law firm Paul Hastings LLP, counsel of record for Samsung
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`Electronics Co., Ltd. and Samsung Electronics America, Inc. in this action. I have personal
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`knowledge of the facts herein and I could and would testify competently as to their truth.
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`2.
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`Attached hereto as Exhibit A are excerpts from GTP’s interrogatories and Rule
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`30(b)(6) notice of deposition served on Samsung on September 8 and 14, 2021, respectively. Page
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`1 of Exhibit A includes GTP’s definitions of the term “Gestures” and “Applications” for both its
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`interrogatories and deposition topics. Pages 2–3 of Exhibit A include Deposition Topic No. 3.
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`3.
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` Interrogatory No. 3 requested: “For the Accused Products identifies in response to
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`Interrogatory No. 1, identify every Application, that can detect, process, interpret, respond to, or
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`be controlled by Gestures, that is (1) preloaded on the Accused Products and/or Devices or (2)
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`available for download on the Accused Products using the table below.
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`Application
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`Gestures Identified
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`4.
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`In GTP’s amended infringement contentions, GTP refers to software applications
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`that run on the Accused Products for determining gestures by the term, “features.” For example,
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`GTP’s amended infringement contentions chart for U.S. Patent 8,553,079, Exhibit D, stated for
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`Claim 6 that “[t]he gestures detected . . . are associated with . . . the following features of the
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`Accused Products: Gesture Detection . . . .”
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`5.
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`On September 24, 2021, the parties conducted a meet and confer to discuss various
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`topics relating to the parties’ recently served discovery requests. During the meet and confer,
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`counsel for GTP refused to discuss whether or how “Features” and “Applications” differed in
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`meaning or scope. More specifically, in seeking to clarify and/or narrow the dispute, Samsung’s
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`counsel asked whether the term “Features” was subsumed within the term “Applications.” GTP’s
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`Case 2:21-cv-00040-JRG Document 88-1 Filed 09/30/21 Page 3 of 4 PageID #: 2085
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`counsel responded that the word “Features” is not in the definition of “Applications,” and stated
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`that GTP did not need to answer whether the terms are co-extensive.
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`6.
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`On May 7, 2021, counsel for Samsung sent a letter to counsel for GTP notifying
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`GTP that its deficient infringement contentions “leave Samsung “unable to prepare its defenses or
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`to identify and provide discovery.”
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`7.
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`On June 21, 2021, counsel for Samsung sent a letter to counsel for GTP stating that
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`“GTP’s failure to provide documentation or other identifying information for each Accused
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`Feature continues to significantly hamper Samsung’s ability to identify and provide discovery or
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`to prepare its defenses in this case.”
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`8.
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`Samsung’s motion to compel and/or strike GTP’s infringement contentions made
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`reference to 18 Applications. See, e.g., Dkt. No. 51 at 1. This was in part due to the mistaken
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`omission of the “Control Exposure Based on Location” Application that GTP included as part of
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`its amended infringement contentions for Claim 8 of U.S. Patent 8,553,079 and Claims 3 and 16
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`of U.S. Patent 7,933,431. At the time, Samsung also was not yet aware that “Gesture Detection”
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`encompasses two distinct Applications: “Air Gestures” and “Palm Gesture for Selfie.” In view of
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`these two oversights, Samsung’s motion to compel and/or strike GTP’s infringement contentions
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`should have referenced 20 Applications rather than 18 Applications.
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`9.
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`To gather information relating to the seven Applications that are not the subject of
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`the motion for a protective order, counsel for Samsung was required to interview five Samsung
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`engineers identified as having knowledge regarding the seven Applications (i.e., one engineer for
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`each Application except for “Gesture Detection,” “Air Gestures,” and “Palm Gesture for Selfie,”
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`which involve the same or very similar underlying functionality and thus required only a single
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`engineer to address the three Applications).
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`Case 2:21-cv-00040-JRG Document 88-1 Filed 09/30/21 Page 4 of 4 PageID #: 2086
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`I hereby declare under penalty of perjury under the laws of the State of California that the
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`foregoing is true and correct. Executed September 28, 2021 in Milpitas, California.
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` /s/ David M. Fox
`David M. Fox
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