Case 2:22-cv-00263-JRG-RSP Document 102 Filed 08/11/23 Page 1 of 6 PageID #: 7778
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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 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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`Case 2:22-cv-00263-JRG-RSP Document 102 Filed 08/11/23 Page 2 of 6 PageID #: 7779
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`Plaintiff AGIS Software Development LLC (“Plaintiff” or “AGIS”) respectfully submits this
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`supplemental brief to address misrepresentations in Defendants Samsung Electronics Co., Ltd. and
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`Samsung Electronics America, Inc.’s (collectively, “Defendant” or “Samsung”) Sur-Reply in
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`Opposition to Plaintiff AGIS Software Development LLC’s Opposed Motion for Leave to Amend
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`its Disclosure of Asserted Claims and Infringement Contentions (Dkt. 91).
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`Samsung’s Sur-Reply generally alleges a lack of diligence in amending the pleadings to assert
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`FMD. However, Samsung does not dispute the following: (1) AGIS’s Second Amended Complaint
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`was timely filed in compliance with the Court’s First Amended Docket Control Order which
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`permitted amended pleadings on or before June 16, 2023 (Dkt. 66 at 5); (2) Samsung filed an Answer
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`to the Second Amended Complaint (Dkt. 80); and (3) Samsung has not filed any motion to dismiss
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`any claims or to strike any portions of the Second Amended Complaint. To the extent the Court does
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`not find Samsung’s diligence arguments to be irrelevant to the relief sought or otherwise waived in
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`view of Samsung’s Answer, Samsung’s Sur-Reply further misrepresents prior litigation history
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`between the parties and conflates the various versions of FMD. Of particular importance, Samsung
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`contends that “AGIS could have accused ‘new versions’ of FMD at the outset of this case, but it
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`deliberately chose not to” and that “[r]ather than accusing FMD from the start . . . AGIS strategically
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`delayed while repeatedly represented to Samsung and this Court that it would not accuse FMD to
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`avoid a stay pending its ITC action—representations on which Samsung reasonably relied.” Dkt. 91
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`at 4-5. These statements are based on express and implicit misrepresentations.
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`Prior to filing the Second Amended Complaint, the Federal Circuit granted Samsung’s
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`petition for mandamus and ordered this Court to transfer a prior Samsung case alleging infringement
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`of Samsung devices with FMD to the Northern District of California. AGIS Software Dev. LLC v.
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`Google LLC, No. 2:19-cv-00361-JRG, Dkt. 393 (E.D. Tex. Aug. 24, 2022); In re Google, No. 2022-
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`140, Dkt. 16 (Fed. Cir. May 16, 2022) (collectively, “AGIS I”). Accordingly, AGIS believed that it
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`Case 2:22-cv-00263-JRG-RSP Document 102 Filed 08/11/23 Page 3 of 6 PageID #: 7780
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`could not accuse Samsung devices with FMD in this Court based on the record relied upon by the
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`Federal Circuit in ordering the transfer of AGIS I, which included Google’s representations that the
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`sources of proof for FMD were in Mountain View, California. AGIS I, Dkt. 28-18 at 3-4 (Google
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`declarant representing the London FMD team’s contributions as merely “maintaining Find My
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`Device” and “not involved [in] the introduction of significant new features” and “focused on back-
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`end migrations of Find My Device”). However, new information obtained during a June 15, 2023,
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`deposition of Google Engineer Sorin Dinu in a now-terminated ITC investigation has revealed that
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`Google deliberately made material misrepresentations to this Court and the Federal Circuit to gain
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`transfer. To the extent the Samsung’s allegations of diligence in accusing FMD are of any relevance
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`to this Motion (they are not), Mr. Dinu’s deposition testimony and the accompanying exhibits (“Dinu
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`Deposition”) are directly relevant to Samsung’s misrepresentation that AGIS could have accused
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`FMD in this venue from the start of this case.
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`The Dinu Deposition contains relevant information regarding the actual locations of sources
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`of proof for FMD, the actual contributions and responsibilities of the London FMD team, and the
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`actual extent of the differences between FMD versions.1 The Dinu Deposition will demonstrate that
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`Samsung’s Sur-Reply incorrectly conflates FMD versions (e.g., 2017 versus present) and that AGIS
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`could not have accused new versions of FMD in this case until June 15, 2023. After reviewing
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`Samsung’s Sur-Reply, AGIS requested that Google (represented by the same counsel as Samsung)
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`produce the Dinu Deposition for the Court’s consideration in this Motion. In response, Google
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`refused and threatened to accuse AGIS’s counsel of violating a protective order if the Dinu
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`Deposition is raised in this proceeding. Additionally, Google responded that AGIS’s request
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`contradicted an agreement between ITC counsel to produce the Dinu Deposition after resolution of
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`1 See, e.g., Dinu Tr. at 48:3-49:17; 59:1-60:5; 60:12-62:13; 63:13-67:6; 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, 15, and 16.
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`Case 2:22-cv-00263-JRG-RSP Document 102 Filed 08/11/23 Page 4 of 6 PageID #: 7781
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`this Motion. However, the referenced ITC agreement was made prior to the misrepresentations in
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`Samsung’s Sur-Reply regarding the content of that very deposition transcript and included the
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`stipulation that the agreement “is not intended to limit and/or remove any pending discovery requests
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`and/or obligations with respect to Google or defendants in any case.” AGIS served a subpoena on
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`Google for the Dinu transcript and exhibits on July 10, 2023, see Exhibits 1 and 2, and Google is
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`withholding all responsive materials, including the Dinu Deposition, until after resolution of this
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`Motion.
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`Accordingly, AGIS respectfully requests that the Court grant AGIS’s Motion for Leave to
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`Amend its Disclosure of Asserted Claims and Infringement Contentions in view of Samsung’s
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`misconduct in falsely stating that no evidence exists demonstrating that AGIS was diligent in adding
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`Find My Device to this case.
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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
`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
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`Case 2:22-cv-00263-JRG-RSP Document 102 Filed 08/11/23 Page 5 of 6 PageID #: 7782
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`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 102 Filed 08/11/23 Page 6 of 6 PageID #: 7783
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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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