Case 2:22-cv-00263-JRG-RSP Document 142 Filed 10/06/23 Page 1 of 9 PageID #: 14035
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`CIVIL ACTION NO. 2:22-cv-263-JRG
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`v.
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`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
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`JURY TRIAL DEMANDED
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`Defendant.
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`SAMSUNG’S REPLY IN SUPPORT OF MOTION FOR RECONSIDERATION OF
`ORDER GRANTING MOTION FOR LEAVE TO AMEND TO ADD FIND MY DEVICE
`(DKT. 115)
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`Case 2:22-cv-00263-JRG-RSP Document 142 Filed 10/06/23 Page 2 of 9 PageID #: 14036
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`I.
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`INTRODUCTION
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`AGIS does not dispute that its infringement contentions in this case are substantively
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`identical to its contentions in AGIS I or that its infringement theories in both cases accuse FMD’s
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`frontend,
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` functionality. Nor does AGIS dispute that FMD’s frontend—the accused
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`functionality—has not materially changed since AGIS I. And while AGIS’s response goes to great
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`lengths to describe
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` to try to justify its prior statement to the Court
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`that the accused FMD features here are “very different” from the accused FMD features in AGIS
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`I, AGIS fails to identify a single
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` that is material to AGIS’s infringement
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`allegations and, accordingly, to this case. The record is clear that AGIS’s FMD allegations in this
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`case are entirely duplicative of its allegations being litigated in NDCA. Because litigating these
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`same FMD allegations here will be judicially inefficient, Samsung respectfully requests that the
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`Court reconsider its prior decision and not add FMD to the case. Reconsideration and reversal of
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`the prior decision is also warranted for the independent reasons that AGIS unjustifiably delayed
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`requesting leave and then misled the Court to obtain leave.
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`Finally, AGIS argues that the Dinu Transcript was not new and accuses Samsung of
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`withholding the transcript from the Court. But Mr. Dinu is a Google engineer, and access to his
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`transcript was limited under the protective order in the ITC Action to outside counsel only in that
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`case—Samsung did not have the right to produce the Dinu Transcript here. Google produced the
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`Dinu Transcript promptly after the Court granted AGIS’s motion for leave to add FMD—exactly
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`as AGIS and Google had agreed. After the transcript was produced, Samsung filed its motion for
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`reconsideration.
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`1
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`Case 2:22-cv-00263-JRG-RSP Document 142 Filed 10/06/23 Page 3 of 9 PageID #: 14037
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`II.
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`ARGUMENTS
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`A.
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`Contrary To AGIS’s Prior Representations, Judicial Efficiency Compels
`Reconsideration And Denial Of AGIS’s Request To Add FMD
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`Contrary to AGIS’s prior assurances to the Court that the features of FMD accused in this
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`case are “very different” from the accused features in the NDCA cases, the record demonstrates
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`that the NDCA cases actually involve the same FMD functionality. Judicial efficiency, therefore,
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`would be best served by allowing AGIS and Google’s disputes about whether FMD infringes the
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`’970 and ’838 Patents to be resolved in the two actions in NDCA in which these disputes were
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`already being litigated before FMD was added to this case.
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`1.
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`The ’970 Patent FMD Claims In The DJ Action Are The Same As The
`’970 Patent FMD Claims Recently Added Here
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`In the DJ Action filed by Google, Google contends that FMD does not infringe the ’970
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`Patent. Mot. at 3 (citing Google LLC v. AGIS Holdings, Inc., No. 5:23-cv-03624 (N.D. Cal. July
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`21, 2023)). The DJ Action was filed after the Dinu deposition and thus addresses the same version
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`of FMD and same allegations that AGIS requested leave to add here. Unable to distinguish the DJ
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`Action claims from its ’970 Patent claims here, AGIS merely argues that it has not yet answered
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`the DJ Action Complaint. But AGIS fails to explain how its answer status is relevant to Google’s
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`request for reconsideration here—nor could it.1 The pertinent fact—a fact that is not disputed by
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`AGIS—is that the same ’970 Patent FMD claims that AGIS seeks to assert here were already being
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`litigated and continue to be litigated in the DJ Action in NDCA. Reconsideration is, thus,
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`warranted because it would be judicially inefficient to include those claims in this case, as doing
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`1 AGIS also fails to explain that the reason it has yet to answer the DJ Action Complaint is that
`AGIS has requested two extensions to its response deadline. See Google LLC v. AGIS Holdings,
`Inc. et al., No. 5:23-cv-03624-BLF, Dkts. 27, 35 (N.D. Cal. Aug. 2, 2023 and Sept. 15, 2023).
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`2
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`Case 2:22-cv-00263-JRG-RSP Document 142 Filed 10/06/23 Page 4 of 9 PageID #: 14038
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`so would create a duplicative proceeding and risk conflicting outcomes.
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`2.
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`The ’838 Patent FMD Claims In The AGIS I Cases Are Not Materially
`Different From The ’838 Patent FMD Claims Recently Added Here
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`Regarding AGIS’s allegations that FMD infringes the ’838 Patent, AGIS does not dispute
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`that its infringement contentions here are nearly identical to those in AGIS I. See Mot. at 4
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`(explaining that AGIS’s contentions are nearly identical); see Opp. generally (no response). AGIS
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`does not dispute that its contentions are based on the frontend,
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` functionality of FMD.
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`Nor does AGIS dispute that, as described in Samsung’s Motion, Mr. Dinu expressly testified
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`See Mot. at 5–6
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`). Indeed, Mr. Dinu explained that
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`. Mot. at 6 (citing Ex. A at
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`100:19–101:3). And AGIS does not even attempt to argue that there have been any material
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`changes to the frontend of FMD.
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`Instead, AGIS identifies five alleged
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` and argues that those
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`different from its allegations in the AGIS I case. See Opp. at 1–9. AGIS’s argument fails.
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`First, AGIS fails to identify any difference between its infringement allegations here and
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`those in the AGIS I case based on these alleged
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`—AGIS cannot and does not
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`identify any material difference in its infringement allegations at all. Indeed, AGIS does not
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`identify any citations to or reliance on
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` in any of its FMD infringement
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`contentions. This is because, as explained in Samsung’s Motion, AGIS accuses FMD’s frontend
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`Case 2:22-cv-00263-JRG-RSP Document 142 Filed 10/06/23 Page 5 of 9 PageID #: 14039
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`functionality, and
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`Mot. at 6. Indeed, AGIS itself admits that
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` Opp. at 9 n2.
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`Second, the
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` AGIS lists in its Introduction (Opp. at 1) are in fact
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`not
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`, but instead all describe
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` and that, critically, did not change
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`any accused FMD functionality. See Mot. at 5–6. In fact, AGIS’s discussion of
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`cites to the same document,
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` See Opp. at 3–9 (citing Ex. B as support
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`). AGIS also cites Mr. Dinu’s testimony that
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` (Opp. at 10), but
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`. Ex. A at 77:7–78:10.
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`And Mr. Dinu testified that
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` Ex. A at 77:22–78:4
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`). In sum,
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` AGIS identifies in its Opposition (1) are limited to
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`, (2) are part of
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`immaterial to AGIS’s infringement allegations, which accuse the frontend of FMD.
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`The undisputed evidence shows that AGIS misled the Court when it said the accused
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`features here are “very different” from the accused features in the AGIS I cases—the accused
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`features are the same. Mot. 6. The newly produced evidence showing that the FMD frontend has
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`4
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`2
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`Case 2:22-cv-00263-JRG-RSP Document 142 Filed 10/06/23 Page 6 of 9 PageID #: 14040
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`not materially changed, combined with the fact that AGIS’s infringement contentions here are
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`nearly identical to its contentions in AGIS I, supports that FMD should not be added because
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`litigating FMD here would be duplicative of the NDCA actions and, thus, judicially inefficient.
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`B.
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`The Dinu Transcript Is Newly Produced Evidence
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`AGIS accuses Samsung of withholding the Dinu Transcript because it has the same counsel
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`as Google. That counsel had access to the transcript in the ITC case is a red herring. The only
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`relevant question is whether Samsung in this case had access to the transcript, which contains
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`Highly Confidential testimony from Google’s engineer about Google’s FMD code—it is
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`undisputed that Samsung did not. See Dkt. 128-2. AGIS’s suggestion that counsel can provide
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`one client’s confidential discovery to other clients for use in different cases, in violation of a
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`protective order, is incorrect and should not be endorsed.
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`Nor can AGIS fault Google for producing the Dinu Transcript after the Court’s order
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`granting leave. AGIS explicitly “agree[d] to Google’s proposal that the Dinu Transcript will be
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`produced within five (5) days of resolution of the pending Motion for Leave to Amend
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`Infringement Contentions if the Motion for Leave is granted.” Dkt. 105-2. Google abided by that
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`agreement, and any suggestion that Google should have produced the Dinu Transcript before the
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`Court’s Order granting leave (Dkt. 115) is spurious.
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`III. CONCLUSION
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`For the reasons above and in Samsung’s Motion, the Court should reconsider its Order
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`granting leave to add FMD and instead exclude AGIS’s FMD claims from this case.
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`5
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`Case 2:22-cv-00263-JRG-RSP Document 142 Filed 10/06/23 Page 7 of 9 PageID #: 14041
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`Dated: September 29, 2023
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`Respectfully submitted,
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`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
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`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)
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`Darin W. Snyder
`dsnyder@omm.com
`Luann L. Simmons
`lsimmons@omm.com
`Mark Liang (pro hac vice)
`mliang@omm.com
`Bill Trac
`btrac@omm.com
`Sorin 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
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`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
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`6
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`Case 2:22-cv-00263-JRG-RSP Document 142 Filed 10/06/23 Page 8 of 9 PageID #: 14042
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`Grant Gibson
`Texas State Bar No. 24117859
`ggibson@omm.com
`O’MELVENY & MYERS LLP
`2501 North Harwood Street, Suite 1700
`Dallas, TX 75201-1663
`Telephone: (972) 360-1900
`Facsimile: (972) 360-1901
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`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 142 Filed 10/06/23 Page 9 of 9 PageID #: 14043
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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: September 29, 2023
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`8
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