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`Case 2:22-cv-00263-JRG-RSP Document 127-3 Filed 09/12/23 Page 2 of 7 PageID #:
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`AGIS SOFTWARE DEVELOPMENT, LLC,( CAUSE NO. 2:22-CV-263-JRG
` )
`Plaintiff,
` (
` )
` (
`
`vs.
` )
`SAMSUNG ELECTRONICS CO., LTD., (
` ) MARSHALL, TEXAS
`et al.,
`
` ( AUGUST 22, 2023
`Defendants.
` ) 9:00 A.M.
`______________________________________________________________
`
`______________________________________________________________
`MOTION HEARING
`
`BEFORE THE HONORABLE ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
`______________________________________________________________
`
`SHAWN McROBERTS, RMR, CRR
`100 E. HOUSTON STREET
`MARSHALL, TEXAS 75670
`(903) 923-8546
`shawn_mcroberts@txed.uscourts.gov
`
`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Case 2:22-cv-00263-JRG-RSP Document 127-3 Filed 09/12/23 Page 3 of 7 PageID #:
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`2
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`A P P E A R A N C E S
`FOR THE PLAINTIFFS: FABRICANT, LLP - NY
` 230 PARK AVENUE, 3RD FLOOR W
` NEW YORK, NEW YORK 10169
` (212) 257-5797
` BY: MR. ALFRED FABRICANT
` MR. ENRIQUE ITURRALDE
` MR. JACOB OSTLING
` McKOOL SMITH, P.C. - MARSHALL
` 104 E. HOUSTON ST., SUITE 300
` MARSHALL, TEXAS 75670
` (903) 923-9000
` BY: MR. SAMUEL BAXTER
`FOR THE DEFENDANTS: O'MELVENY & MYERS -
` SAN FRANCISCO
` TWO EMBARCADERO CENTER
` 28TH FLOOR
` SAN FRANCISCO, CA 94111
` (415) 984-8700
` BY: MS. LUANN SIMMONS
` MR. MARK LIANG
` O'MELVENY & MYERS, LLP
` 2501 NORTH HARWOOD STREET
` SUITE 1700
` DALLAS, TEXAS 75201-1663
` (972) 360-1900
` BY: MR. GRANT GIBSON
` MANN, TINDEL, THOMPSON
` 112 E. LINE STREET, SUITE 304
` TYLER, TEXAS 75702
` (903) 657-8540
` BY: MR. BLAKE THOMPSON
` GILLAM & SMITH, LLP
` 303 SOUTH WASHINGTON AVENUE
` MARSHALL, TEXAS 75670
` (903) 934-8450
` BY: MS. MELISSA SMITH
`OFFICIAL REPORTER: SHAWN M. McROBERTS, RMR, CRR
` 100 E. HOUSTON STREET
` MARSHALL, TEXAS 75670
` (903) 923-8546
`
`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Case 2:22-cv-00263-JRG-RSP Document 127-3 Filed 09/12/23 Page 4 of 7 PageID #:
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`THE COURT: Good morning. Please be seated.
`For the record, we're here for the motion hearing in AGIS
`Software Development versus Samsung Electronics, which is Case
`No. 2:22-263 on our docket.
`Would counsel state their appearances for the record?
`MR. BAXTER: Good morning, Your Honor. Sam Baxter
`with McKool Smith along with Fred Fabricant, Enrique
`Iturralde, and Jacob Ostling. And we're ready, Your Honor.
`THE COURT: All right. Thank you, Mr. Baxter.
`MR. THOMPSON: Good morning, Your Honor. Blake
`Thompson here for Samsung. With me today is Melissa Smith,
`Luann Simmons, Mark Laing, and Grant Gibson. And we're ready
`to proceed.
`THE COURT: All right. Thank you, Mr. Thompson.
`Let me see. We are here on Plaintiff's motion, so I'll
`turn it over first to counsel for Plaintiff.
`MR. FABRICANT: Good morning, Your Honor. Fred
`Fabricant for the Plaintiff.
`THE COURT: Good morning, Mr. Fabricant.
`MR. FABRICANT: Your Honor, the first motion is a
`motion to amend the infringement contentions. The original
`infringement contentions were filed -- were served in December
`of 2022, and the proposed amendments follow a second amended
`complaint which was filed in the case on June 16 of 2023. And
`immediately following the filing of the second amended
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`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Case 2:22-cv-00263-JRG-RSP Document 127-3 Filed 09/12/23 Page 5 of 7 PageID #:
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`is not the same claim in this -- in the case as it existed
`then simply based on the fact that Samsung devices are
`accused, because our allegations against FMD in the courts are
`about FMD; they are not about Samsung devices. I believe they
`said it doesn't matter where Samsung devices are made or how
`they are manufactured; what matters is FMD and how it works.
`And so it is not -- there is nothing particular about the fact
`that they're running on Samsung devices.
`THE COURT: Well, that was an argument that cases
`accusing FMD are about FMD. As I understand it, this -- the
`argument here is that the presence of FMD on the Samsung
`devices meets some of the limitations of their patents, not
`that they're separately accusing FD without regard to your
`devices.
`
`MR. SIMMONS: Your Honor, FMD does have to be
`running on some device to meet all of the claim limitations,
`but there is nothing particular other than there is a device
`and that it has a processor and can run an application. There
`is nothing particular about the device, and that is borne out
`by the infringement contentions that AGIS has served. There
`is nothing specific or different about AGIS's allegations
`against FMD running on Samsung devices in other cases.
`There's nothing specific about the device. The functionality
`that is accused is FMD and it's all about FMD, and there is
`nothing particular to what device it is on, other than
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`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Case 2:22-cv-00263-JRG-RSP Document 127-3 Filed 09/12/23 Page 6 of 7 PageID #:
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`damages. But damages is really the only issue because that's
`where you get into how many devices are sold.
`So the functionality itself--FMD. And that functionality
`and whether or not that functionality infringes these two
`patents is being addressed in the Northern District of
`California, including in a case against Samsung, and is set
`for summary judgment very shortly.
`And so I don't agree that judicial efficiency is served
`by adding it into this case, particularly when AGIS's own
`arguments show that the only reason it wasn't accused before
`is a strategic decision. That is not good cause.
`THE COURT: All right. Thank you, Ms. Simmons.
`MR. SIMMONS: Thank you, Your Honor.
`MR. FABRICANT: Your Honor, the position of Samsung
`that they request an extra six months if the Court allows FMD
`to be accepted in the case is really eight months because
`there are already two months remaining in discovery. So we
`are talking about eight months from today to add this one
`aspect of the case, and we think that that's unnecessary and
`too long. That is in essence an entire discovery period in a
`brand new case.
`We have a plaintiff in this case who's 83 years old. I'm
`trying to get his case and have his day in court. The
`statement was made that the case is being litigated in the
`Northern District of California and it's far along. We were
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`Shawn M. McRoberts, RMR, CRR
`Federal Official Court Reporter
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`Case 2:22-cv-00263-JRG-RSP Document 127-3 Filed 09/12/23 Page 7 of 7 PageID #:
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`two months from trial in this court on these cases, Your
`Honor, and we have a trial date in the Northern District of
`California of August of 2025. That's how far along that case
`has come in the Northern District of California.
`We respectfully request that Captain Beyer and AGIS be
`allowed to the most expeditious way of resolving these claims
`against Samsung. We have a case against Samsung that's not
`related to Google, and I would -- because aspects of the
`device are device, not software.
`I would also say that the '970 Patent is not in the
`California case at all, and that's here. And, therefore,
`there are very different aspects to what's being litigated.
`Even if summary judgment on an FMD claim were granted in the
`Northern District of California, it would have no impact on
`the '970 Patent in the infringement case. And, therefore,
`judicial economy does strongly favor bringing it into this
`case.
`And if the Court requires adding a reasonable period of
`time for a continuance, which is the fourth factor on the
`analysis for good cause, to allow this to happen, we propose
`that that period be 90 days, Your Honor, which would still be
`90 days in addition to the two months which already exists.
`Thank you, Your Honor.
`THE COURT: All right. Mr. Fabricant, there's also
`the claim construction issue, and while I don't think that we
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`Federal Official Court Reporter
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