Case 2:22-cv-00263-JRG-RSP Document 105 Filed 08/17/23 Page 1 of 13 PageID #: 7897
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Plaintiff,
`
`v.
`
`CIVIL ACTION NO. 2:22-cv-263-JRG
`
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
`
`JURY TRIAL DEMANDED
`
`Defendant.
`
`
`
`DEFENDANT SAMSUNG’S RESPONSE TO PLAINTIFF AGIS SOFTWARE
`DEVELOPMENT LLC’S OPPOSED MOTION FOR LEAVE TO FILE
`SUPPLEMENTAL BRIEF REGARDING PLAINTIFF’S OPPOSED MOTION FOR
`LEAVE TO AMEND ITS INFRINGEMENT CONTENTIONS
`
`

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`Case 2:22-cv-00263-JRG-RSP Document 105 Filed 08/17/23 Page 2 of 13 PageID #: 7898
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`TABLE OF CONTENTS
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`Page
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`I.
`
`II.
`
`III.
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`SAMSUNG MADE NO MISREPRESENTATIONS ....................................................... 1
`
`AGIS’S PROPOSED “SUPPLEMENTAL” ARGUMENTS WERE ALREADY,
`OR COULD HAVE BEEN, RAISED ............................................................................... 3
`
`AGIS’S PROPOSED ARGUMENTS ARE NOT MATERIAL TO THE
`MOTION IT SEEKS TO SUPPLEMENT ........................................................................ 4
`
`IV.
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`AGIS CANNOT SHOW GOOD CAUSE FOR ADDITIONAL BRIEFING ................... 5
`
`V.
`
`CONCLUSION .................................................................................................................. 5
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`i
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`Case 2:22-cv-00263-JRG-RSP Document 105 Filed 08/17/23 Page 3 of 13 PageID #: 7899
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`TABLE OF AUTHORITIES
`
`
`Page
`
`Cases
`
`Scott Envt’l Servs., Inc. v. Newfield Expl. Co.,
`No. 2:19-CV-00026-JRG-RSP, 2019 WL 5393989 (E.D. Tex. Oct. 22, 2019) ....................3, 5
`
`Semantic Search Techs. LLC v. Aldo U.S., Inc.,
`No. 6:16-CV-01058-RWS, 2019 WL 13029910 (E.D. Tex. Aug. 21, 2019) ............................3
`
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`ii
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`Case 2:22-cv-00263-JRG-RSP Document 105 Filed 08/17/23 Page 4 of 13 PageID #: 7900
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`TABLE OF EXHIBITS
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`B (Dkt. 72-3)
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`C (Dkt. 72-4)
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`D (Dkt. 72-5)
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`E (Dkt. 72-6)
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`F (Dkt. 72-7)
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`G (Dkt. 72-8)
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`H (Dkt. 72-9)
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`Document
`Ex. Number
`Plaintiff’s Exhibits Filed With Plaintiff’s Opening Brief (Dkt. 72)
`A (Dkt. 72-2)
`AGIS’s Amended Disclosure of Asserted Claims and Infringement
`Contentions
`AGIS’s Amended Exhibit A for U.S. Patent No. 9,820, 123 to its Disclosure
`of Asserted Claims and Infringement Contentions
`AGIS’s Amended Exhibit B for U.S. Patent No. 9,749,829 to its Disclosure
`of Asserted Claims and Infringement Contentions
`AGIS’s Amended Exhibit C1 for U.S. Patent No. 8,213,970 to its
`Disclosure of Asserted Claims and Infringement Contentions
`AGIS’s New Exhibit C2 for U.S. Patent No. 8,213,970 to its Disclosure of
`Asserted Claims and Infringement Contentions
`AGIS’s Amended Exhibit D1 for U.S. Patent No. 9,467,838 to its
`Disclosure of Asserted Claims and Infringement Contentions
`AGIS’s New Exhibit D2 for U.S. Patent No. 9,467,838 to its Disclosure of
`Asserted Claims and Infringement Contentions
`Redline of AGIS’s Amended Disclosure of Asserted Claims and
`Infringement Contentions
`Defendants’ Additional Exhibits Filed With Their Opposition (Dkt. 85)
`1 (Dkt. 85-2)
`List of AGIS District Court and ITC Cases Pulled from Docket Navigator
`2 (Dkt. 85-3)
`AGIS’s 2017 Complaint Against ZTE
`3 (Dkt. 85-4)
`AGIS’s 2017 Complaint Against Apple
`4 (Dkt. 85-5)
`AGIS’s 2017 Complaint Against LG
`5 (Dkt. 85-6)
`AGIS’s 2017 Complaint Against HTC
`6 (Dkt. 85-7)
`AGIS’s 2017 Complaint Against Huawei
`7 (Dkt. 85-8)
`AGIS’s 2019 Complaint Against Google (Google I)
`8 (Dkt. 85-9)
`AGIS’s 2019 Complaint Against Samsung (Samsung I)
`9 (Dkt. 85-10)
`AGIS’s 2019 Complaint Against Waze
`10 (Dkt. 85-11) AGIS’s 2022 ITC Complaint against Google, Samsung, and 11 Other
`Respondents
`Initial Determination on AGIS’s June 15, 2023 Motion to Terminate ITC
`Investigation
`12 (Dkt. 85-13) AGIS’s 2023 Complaint Against Google (Google II)
`13 (Dkt. 85-14) Google’s Unopposed Motion to Stay the Google II Case
`14 (Dkt. 85-15) AGIS Email Chain Noticing Samsung of its Intention to File the Pending
`Motion for Leave
`15 (Dkt. 85-16) AGIS Email Chain Raising “Group” Claim Construction Issue
`16 (Dkt. 85-17) AGIS Supplemental Claim Construction Brief on “Group” from the ITC
`Investigation
`17 (Dkt. 85-18) AGIS Infringement Claim Chart from the Google I Case for FMD for the
`’970 Patent
`18 (Dkt. 85-19) AGIS Infringement Claim Chart from the Google I Case for FMD for the
`’838 Patent
`Defendants’ Additional Exhibits Filed With This Brief
`
`11 (Dkt. 85-12)
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`iii
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`Case 2:22-cv-00263-JRG-RSP Document 105 Filed 08/17/23 Page 5 of 13 PageID #: 7901
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`TABLE OF AUTHORITIES
`(continued)
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`Page
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`AGIS and Google Agreement Regarding the Production of the Sorin Dinu
`Deposition Transcript
`Redacted Declaration of Shannon Shaper Filed in Support of Motions to
`Transfer in AGIS Software Development LLC v. Waze Mobile Limited,
`Google LLC, Samsung Electronics Co. Ltd, and Samsung Electronics
`America, Inc., Nos. 2:19-CV-00359-JRG, 2:19-CV-00361-JRG, 2:19-CV-
`00362-JRG, Dkt. 28-18 (E.D. Tex.)
`AGIS’s 2022 Complaint Against ASUS
`AGIS’s 2022 Complaint Against BLU Products
`AGIS’s 2022 Complaint Against Caterpillar
`AGIS’s 2022 Complaint Against HMD
`AGIS’s 2022 Complaint Against Kyocera
`AGIS’s 2022 Complaint Against Lenovo and Motorola
`AGIS’s 2022 Complaint Against OnePlus
`AGIS’s 2022 Complaint Against Panasonic
`AGIS’s 2022 Complaint Against Sony
`AGIS’s 2022 Complaint Against TCL
`AGIS’s 2022 Complaint Against Xiaomi
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`
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`19
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`20
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`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
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`iv
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`Case 2:22-cv-00263-JRG-RSP Document 105 Filed 08/17/23 Page 6 of 13 PageID #: 7902
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`Contrary to AGIS’s accusations, Samsung made no misrepresentations in its sur-reply (or
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`in any other filings). AGIS’s request for a supplemental brief to respond to the alleged
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`misrepresentations should be denied for that reason alone. AGIS’s request should also be denied
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`because it is nothing more than an eleventh-hour attempt to get a “do-over” of its briefing on its
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`Motion for Leave to Amend its Infringement Contention to add claims against a new product,
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`Google’s Find My Device software (“FMD”) (Dkt. 72, “Contentions Motion”), just days before
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`next week’s August 22 hearing on that motion. Indeed, the “supplemental” arguments AGIS seeks
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`to make—relating to alleged “new versions” of FMD and testimony from Google engineer Sorin
`
`Dinu—either could have been raised or were actually raised before Samsung’s sur-reply.
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`Moreover, none of AGIS’s arguments are material to its Contentions Motion. The Court should
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`deny AGIS’s request for supplemental briefing and strike AGIS’s supplemental brief (Dkt. 102).
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`I.
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`SAMSUNG MADE NO MISREPRESENTATIONS
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`The entire basis for AGIS’s request for supplemental briefing—that Samsung’s sur-reply
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`made two “misrepresentations”—is contradicted by the record and fails to support its request.
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`The first alleged “misrepresentation” is Samsung’s statement that “AGIS could have
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`accused ‘new versions’ of FMD at the outset of this case, but it deliberately chose not to.” Dkt.
`
`100 at 2. There is absolutely nothing false about this statement. As Samsung explained in the
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`paragraph leading up to this statement, AGIS’s proposed amended infringement contentions that
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`its Contentions Motion seeks leave to serve in this case are substantively identical to AGIS’s
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`infringement contentions regarding FMD from its 2019 case against Google (“AGIS I”). Dkt. 91
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`at 4. By AGIS’s own infringement contentions, the accused FMD functionality has not changed,
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`and AGIS could have accused FMD against Samsung when it filed this case but chose not to.
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`AGIS’s argument that Samsung’s statement “incorrectly conflates FMD versions (e.g.,
`
`2017 versus present)” is both incorrect and a red herring. Dkt. 100 at 2. Samsung’s sur-reply
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`1
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`

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`Case 2:22-cv-00263-JRG-RSP Document 105 Filed 08/17/23 Page 7 of 13 PageID #: 7903
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`
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`made no factual representations about “FMD versions (e.g., 2017 versus present)” at all. Dkt. 91
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`at 4-5. Instead, Samsung’s sur-reply responded to AGIS’s reply brief arguments about alleged
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`“new versions” of FMD, by explaining that: (1) AGIS had not identified any alleged “new
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`versions” or explained how they are allegedly materially different from “prior versions” of FMD
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`that AGIS has accused in multiple past cases against Google and Samsung; (2) any argument AGIS
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`might have made about the materiality of these alleged “new versions” was belied by AGIS’s
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`proposed amended infringement contentions against FMD, which are substantively identical to its
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`AGIS I contentions against FMD; and (3) AGIS could have, therefore, accused any alleged “new
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`version” from the outset of this case. Id. at 4. At bottom, the Court’s resolution of AGIS’s
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`Contention Motion does not depend on whether there are different “FMD versions (e.g., 2017
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`versus present),” as AGIS suggests—as made clear by AGIS’s proposed amended infringement
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`contentions, the FMD functionality that AGIS has been accusing since at least 2019 is the same
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`FMD functionality that AGIS belatedly seeks to accuse in this case. Samsung’s statement to that
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`effect is correct and does not provide a basis for additional briefing.
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`The second alleged misrepresentation is Samsung’s statement that “AGIS strategically
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`delayed while repeatedly represent[ing] to Samsung and this Court that it would not accuse FMD
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`to avoid a stay pending its ITC action.” Dkt. 100 at 2. There is also nothing false about this
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`statement. The undisputed litigation chronology that Samsung provided in its opposition brief
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`shows that: (1) AGIS has been asserting its patents, including the ’970 Patent, against FMD for
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`the past six years against over a dozen defendants, including multiple cases each against Google
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`and Samsung; (2) AGIS not only omitted FMD from its allegations in this case for a year, it
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`repeatedly represented to this Court and Samsung that this case does not concern FMD to avoid a
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`stay pending its ITC action and dismissal of its claims; and (3) AGIS reversed course on its
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`2
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`Case 2:22-cv-00263-JRG-RSP Document 105 Filed 08/17/23 Page 8 of 13 PageID #: 7904
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`
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`representations the day after it voluntarily withdrew its ITC action. Dkt. 85 at 2-6. Because
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`Samsung made no misrepresentations, AGIS’s request for a supplemental brief should be denied.
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`II.
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`AGIS’S PROPOSED “SUPPLEMENTAL” ARGUMENTS WERE ALREADY, OR
`COULD HAVE BEEN, RAISED
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`AGIS’s request for supplemental briefing should also be denied because its proposed
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`supplemental arguments were already raised, or could have been raised, in AGIS’s opening and
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`reply briefs. This District denies motions for supplemental briefing when the issues sought to be
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`briefed could have been raised in the original briefing. Scott Envt’l Servs., Inc. v. Newfield Expl.
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`Co., No. 2:19-CV-00026-JRG-RSP, 2019 WL 5393989, at *2 (E.D. Tex. Oct. 22, 2019) (denying
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`leave to file a supplemental brief about a case that was decided before the original motion was
`
`filed); Semantic Search Techs. LLC v. Aldo U.S., Inc., No. 6:16-CV-01058-RWS, 2019 WL
`
`13029910, at *2 (E.D. Tex. Aug. 21, 2019) (denying leave to file supplemental briefing where
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`“Plaintiff . . . had many . . . reasonable opportunities to raise its arguments and present evidence”).
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`Here, AGIS’s “supplemental” arguments about “new versions” of FMD were, in fact,
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`already raised in a full paragraph in its reply brief. Dkt. 86 at 1-2 (“ . . . AGIS has sought to add
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`the new versions of FMD to the instant case in an effort to streamline proceedings . . .”). Indeed,
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`Samsung’s sur-reply discussion of “new versions” was only in response to AGIS’s reply, pointing
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`out that if any “new versions” exist as AGIS alleged, that still failed to justify granting AGIS’s
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`Contentions Motion. Dkt. 91 at 4-5. AGIS’s additional argument that it needs another brief to
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`respond to Samsung’s sur-reply statement that “AGIS strategically delayed while repeatedly
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`represent[ing] to Samsung and this Court that it would not accuse FMD to avoid a stay pending its
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`ITC action—representations on which Samsung reasonably relied” (Dkt. 91 at 5) similarly fails
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`because Samsung made a nearly identical statement in its earlier opposition brief. See Dkt. 85 at
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`13 (“the prejudice to Samsung is heightened here by AGIS’s prior representations that this case
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`3
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`Case 2:22-cv-00263-JRG-RSP Document 105 Filed 08/17/23 Page 9 of 13 PageID #: 7905
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`
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`does not pertain to Google-developed software, including FMD . . . Samsung reasonably relied on
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`AGIS’s representations”).1 AGIS had every opportunity to respond in its reply but elected not to.
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`III. AGIS’S PROPOSED ARGUMENTS ARE NOT MATERIAL TO THE MOTION
`IT SEEKS TO SUPPLEMENT
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`AGIS’s request to supplement its Contentions Motions briefing should independently be
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`denied because none of the arguments AGIS seeks to include in its supplemental brief are material
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`to its Contentions Motion. AGIS vaguely suggests that there are “new versions” of FMD, which
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`it only learned of by taking Mr. Dinu’s deposition in the ITC on June 15. Dkt. 100 at 2. But as
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`Samsung’s sur-reply noted, AGIS’s professed interest in “new versions” is contradicted by its own
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`proposed amended infringement contentions, which are substantively identical to those from its
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`AGIS I case against Google in 2019. Dkt. 91 at 4.
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`AGIS also accuses non-party Google of having “made deliberate and material
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`misrepresentations to this Court and the Federal Circuit in an effort to gain transfer” in the AGIS I
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`litigation because, according to AGIS, Google “represented that the sources of proof for FMD
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`were in Mountain View, California,” whereas Mr. Dinu’s testimony in the ITC action shows
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`“contributions and responsibilities of the London FMD Team” for FMD’s Development. Dkt.
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`100 at 2; Dkt. 102 at 3. Google made no misrepresentations. As AGIS is aware, in addition to
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`indicating that the development of FMD took place in Mountain View, California, the Google
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`declaration filed in support of Samsung’s transfer motion in March 2020 before this Court in the
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`1 As AGIS acknowledges, the arguments in its proposed supplemental brief rely on the deposition
`of Mr. Dinu, taken as part of the ITC investigation on June 15, 2023—before AGIS filed its
`Contentions Motion. Yet AGIS waited until after the close of all briefing on its Contentions
`Motion before raising the Dinu deposition, in its motion for hearing (Dkt. 94). As AGIS also
`acknowledges, it previously agreed—in writing—that Mr. Dinu’s transcript would not be produced
`in this case unless and until its Contentions Motion was granted. Ex. 19. Yet, contrary to that
`agreement, AGIS brings this motion seeking to add arguments based on that transcript and
`improperly accuses non-party Google of withholding the transcript. Dkt. 102 at 4.
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`4
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`

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`Case 2:22-cv-00263-JRG-RSP Document 105 Filed 08/17/23 Page 10 of 13 PageID #: 7906
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`AGIS I cases fully disclosed the London engineers, stating: “in 2019, responsibilities for
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`maintaining Find My Device were transferred to a team in London.” Ex. 20, Shaper Decl. ¶ 9.
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`AGIS also provides no basis to dispute the Google declaration’s additional statements that the
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`London team was, at that time in early 2020, “maintaining Find My Device,” “not involved [in]
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`the introduction of significant new features,” and “focused on backend migrations of Find My
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`Device” (Dkt. 102 at 3), particularly since the transition to the London team only began the prior
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`year as the declaration states.
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`Regardless, AGIS’s contention that Google’s alleged misrepresentations from AGIS I led
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`AGIS to believe it could not accuse devices with FMD in this District is completely belied by the
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`fact that AGIS filed eleven cases in this District in November 2022 asserting the same patents
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`against Google’s FMD running on devices of other defendants. Exs. 21-31.
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`IV. AGIS CANNOT SHOW GOOD CAUSE FOR ADDITIONAL BRIEFING
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`To the extent the four good cause factors are relevant to AGIS’s request for supplemental
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`briefing, none support granting the request. For the timeliness and importance factors, as explained
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`above, AGIS fails to identify any proposed “supplemental” arguments that it could not have raised
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`earlier or that are material to its Contentions Motion. The prejudice factor further supports denying
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`AGIS’s request because “allowing supplementation would [] cause significant prejudice,” as
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`briefing has “already closed” and the hearing on the Contentions Motion is only days away on
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`August 22. Scott Envt’l, 2019 WL 5393989, at *2. And a continuance would not cure the prejudice
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`to Samsung of reopening briefing.
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`V.
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`CONCLUSION
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`The Court should deny AGIS’s Motion for Leave to File Supplemental Briefing, Dkt. 100,
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`and strike AGIS’s supplemental brief, Dkt. 102. To the extent the Court is inclined to allow AGIS
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`to file supplemental briefing, Samsung requests leave to file a two-page response brief.
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`5
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`Case 2:22-cv-00263-JRG-RSP Document 105 Filed 08/17/23 Page 11 of 13 PageID #: 7907
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`Dated: August 17, 2023
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`
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`Respectfully submitted,
`
`By: /s/ Melissa R. Smith
`Melissa R. Smith
`Texas State Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Phone: (903) 934-8450
`Fax: (903) 934-9257
`
`Gregory Blake Thompson
`Texas State Bar No. 24042033
`MANN | TINDEL | THOMPSON
`112 E. Line Street, Suite 304
`Tyler, Texas 75702
`(903) 657-8540
`(903) 657-6003 (fax)
`
`Darin W. Snyder (pro hac vice)
`dsnyder@omm.com
`Mark Liang (pro hac vice)
`mliang@omm.com
`Bill Trac
`btrac@omm.com
`Sorin G. Zaharia (pro hac vice)
`szaharia@omm.com
`O’MELVENY & MYERS LLP
`Two Embarcadero Center, 28th Floor
`San Francisco, CA 94111
`Telephone: (415) 984-8700
`Facsimile: (415) 984-8701
`
`Stacy Yae (pro hac vice)
`syae@omm.com
`O’MELVENY & MYERS LLP
`400 South Hope Street, 18th Floor
`Los Angeles, CA 90071
`Telephone: (213) 430-6000
`Facsimile: (213) 430-6407
`
`Grant Gibson
`Texas State Bar No. 24117859
`ggibson@omm.com
`
`6
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`Case 2:22-cv-00263-JRG-RSP Document 105 Filed 08/17/23 Page 12 of 13 PageID #: 7908
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`O’MELVENY & MYERS LLP
`2501 North Harwood Street, Suite 1700
`Dallas, TX 75201-1663
`Telephone: (972) 360-1900
`Facsimile: (972) 360-1901
`
`Neil P. Sirota
`neil.sirota@bakerbotts.com
`Margaret M. Welsh
`margaret.welsh@bakerbotts.com
`BAKER BOTTS L.L.P.
`30 Rockefeller Plaza
`New York, NY 10112-4498
`Phone: (212) 408-2500
`Fax: (212) 408-2501
`
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`ATTORNEYS FOR DEFENDANTS
`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA, INC.
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`Case 2:22-cv-00263-JRG-RSP Document 105 Filed 08/17/23 Page 13 of 13 PageID #: 7909
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record who are deemed to have consented to electronic
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`service are being served with a copy of this document via electronic mail.
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`Dated: August 17, 2023
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`8
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