Case 2:22-cv-00263-JRG-RSP Document 100 Filed 08/11/23 Page 1 of 5 PageID #: 7433
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:22-cv-00263-JRG
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`JURY TRIAL DEMANDED
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`AGIS SOFTWARE DEVELOPMENT 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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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S OPPOSED MOTION FOR
`LEAVE TO FILE SUPPLEMENTAL BRIEFING IN RESPONSE TO DEFENDANTS
`SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG ELECTRONICS AMERICA,
`INC.’S SUR-REPLY IN OPPOSITION TO PLAINTIFF’S OPPOSED MOTION FOR
`LEAVE TO AMEND ITS DISCLOSURE OF ASSERTED CLAIMS AND INFRINGEMENT
`CONTENTIONS
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`Plaintiff AGIS Software Development LLC (“Plaintiff” or “AGIS”) respectfully moves this
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`Court under Rule CV-7 for leave to file a supplemental brief to address misrepresentations in
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`Defendants Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc.’s (collectively,
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`“Defendant” or “Samsung”) Sur-Reply in Opposition to Plaintiff AGIS Software Development
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`LLC’s Opposed Motion for Leave to Amend its Disclosure of Asserted Claims and Infringement
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`Contentions (Dkt. 91).
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`Prior to the filing of Samsung’s Sur-Reply, AGIS’s ITC counsel and counsel for Google LLC
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`(“Google”) entered into an agreement regarding the timing of the production of the transcript of Mr.
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`Sorin Dinu, Google’s corporate witness. The parties entered into the agreement in an effort to resolve
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`a pending motion to declassify the deposition transcript and certain deposition exhibits of Mr. Sorin
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`Dinu concerning the location of Google’s witnesses in London, England. In that agreement, the
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`parties stipulated that the agreement “is not intended to limit and/or remove any pending discovery
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`requests and/or obligations with respect to Google or defendants in any case.”
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`Case 2:22-cv-00263-JRG-RSP Document 100 Filed 08/11/23 Page 2 of 5 PageID #: 7434
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`Samsung filed its Sur-Reply in opposition to AGIS’s Motion on July 26, 2023. Dkt. 91. In
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`its sur-reply, Samsung made certain misrepresentations regarding the prior litigation history between
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`the parties and conflates the various versions of FMD. Specifically, Samsung alleges that “AGIS
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`could have accused ‘new versions’ of FMD at the outset of this case, but it deliberately chose not to”
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`and that “[r]ather than accusing FMD from the start . . . AGIS strategically delayed while repeatedly
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`represented to Samsung and this Court that it would not accuse FMD to avoid a stay pending its ITC
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`action—representations on which Samsung reasonably relied.” Dkt. 91 at 4-5. These statements are
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`based on express and implicit misrepresentations. Accordingly, AGIS seeks leave to address the
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`misrepresentations made in Samsung’s Sur-Reply.
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`As submitted in its request for a hearing, AGIS noted that the requested Google FMD
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`information is relevant to Samsung’s position in opposition to this motion that AGIS unduly delayed
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`in amending its infringement contentions, and it supports the timeliness of AGIS’s addition of Find
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`My Device to the Amended Complaint on June 16, 2023 (Dkt. 69), which was filed in accordance
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`with the Court’s deadline to file amended pleadings (Dkt. 66 at 5), and to which Samsung filed a
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`responsive Answer on June 30, 2023 (Dkt. 80).
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`Prior to Mr. Dinu’s deposition, AGIS believed that it could not accuse Samsung devices with
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`FMD in this Court based on the record relied upon by the Federal Circuit in the petition for
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`mandamus. However, new information obtained during a June 15, 2023 deposition of Google’s
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`engineer, Sorin Dinu, in a now-terminated ITC investigation has revealed that Google has made
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`deliberate and material misrepresentations to this Court and the Federal Circuit in an effort to gain
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`transfer. The Dinu Deposition demonstrates that Samsung’s Sur-Reply incorrectly conflates FMD
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`versions (e.g., 2017 versus present) and that AGIS could not have accused new versions of FMD in
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`this case until June 15, 2023. See, e.g., Dinu Tr. at 48:3-49:17; 59:1-60:5; 60:12-62:13; 63:13-67:6;
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`70:5-76:2; 76:5-77:16; 78:11-79:19; 81:3-82:19; 92:2-16; 93:1-13; 96:2-16; and Exhibits 12, 13, 14,
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`Case 2:22-cv-00263-JRG-RSP Document 100 Filed 08/11/23 Page 3 of 5 PageID #: 7435
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`15, and 16.
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`Briefing on AGIS’s Motion closed on July 26, 2023. Local Rule CV-7 allows for additional
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`briefing with the Court’s leave. L.R. CV-7(f), (k). There is good cause to allow AGIS to supplement
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`its briefing. To determine whether there is “good cause,” the Court must consider: (1) the explanation
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`for the failure to timely [include the evidence and arguments]; (2) the importance of the [evidence
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`and arguments]; (3) potential prejudice in allowing the [evidence]; and (4) the availability of a
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`continuance to cure such prejudice. See Reliance Ins. Co. v. Louisiana Land & Expl. Co., 110 F.3d
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`253, 257 (5th Cir. 1997) (considering good cause to supplement). First, AGIS could not have
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`addressed Samsung’s arguments in its Motion or Reply because Samsung first raised the arguments
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`in its Sur-Reply. Second, as described above, the supplemental brief is directly relevant to Samsung’s
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`new arguments in its Sur-Reply regarding various versions of Find My Device and the alleged
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`availability of these versions. Third, there is no prejudice to Samsung because AGIS is merely
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`addressing the arguments that Samsung has already made. Fourth, even if there was any alleged
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`prejudice, a continuance is not necessary where the hearing is scheduled for August 22, 2023, and
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`thus, to the extent necessary, Samsung would have sufficient opportunity to respond.
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`Accordingly, AGIS respectfully requests that the Court grant its motion for leave to file a
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`supplemental brief in support of its Motion for Leave to Amend its Disclosure of Asserted Claims
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`and Infringement Contentions, in response to Defendants’ Sur-Reply in Opposition to Plaintiff AGIS
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`Software Development LLC’s Opposed Motion for Leave
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`Dated: August 11, 2023
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`Respectfully submitted,
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` /s/ Alfred R. Fabricant
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III
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`3
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`Case 2:22-cv-00263-JRG-RSP Document 100 Filed 08/11/23 Page 4 of 5 PageID #: 7436
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`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`Enrique W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@ fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Avenue
`Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
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`Samuel F. Baxter
`State Bar No. 01938000
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`State Bar No. 24012906
`Email: jtruelove@mckoolsmith.com
`MCKOOL SMITH, P.C.
`104 E. Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Facsimile: (903) 923-9099
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`ATTORNEYS FOR PLAINTIFF AGIS
`SOFTWARE DEVELOPMENT LLC
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`Case 2:22-cv-00263-JRG-RSP Document 100 Filed 08/11/23 Page 5 of 5 PageID #: 7437
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on August 11, 2023, all counsel of record who are
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`deemed to have consented to electronic service are being served with a copy of this document via the
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`Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
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`CERTIFICATE OF CONFERENCE
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`Pursuant to Local Rule CV-7(h), the undersigned hereby certifies that counsel for Plaintiff
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`met and conferred with counsel for Defendants on August 8, 2023. Defendants have indicated they
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`oppose.
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`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
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