Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 1 of 17 PageID #: 17714
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`Case No. 2:22-cv-00263-JRG-RSP
`
`JURY TRIAL DEMANDED
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`SAMSUNG’S OPPOSITION TO PLAINTIFF AGIS SOFTWARE
`DEVELOPMENT LLC’S OPPOSED MOTION FOR LEAVE TO REQUEST
`SUPPLEMENTAL CLAIM CONSTRUCTION
`
`
`
`
`v.
`
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS, AMERICA,
`INC.,
`
`
`Defendants.
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`
`
`
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`

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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 2 of 17 PageID #: 17715
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`TABLE OF CONTENTS
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`
`Page
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`
`I.
`
`II.
`
`INTRODUCTION ............................................................................................................. 1
`
`PROCEDURAL BACKGROUND .................................................................................... 2
`
`A.
`
`B.
`
`The AGIS I Actions That Were Transferred To The NDCA ................................. 2
`
`This Case ................................................................................................................ 3
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`III.
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`LEGAL STANDARDS ..................................................................................................... 4
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`IV. ARGUMENT ..................................................................................................................... 5
`
`A.
`
`B.
`
`C.
`
`D.
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`The Construction Of “remote control” Is Not Relevant, Much Less
`Important. ............................................................................................................... 5
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`AGIS Waited Months To Seek Leave To Construe “remote control.”.................. 6
`
`Granting Leave Would Prejudice Samsung And Require A Continuance. ........... 8
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`AGIS Should Not Be Permitted To Preempt The AGIS I Claim
`Construction Process. ............................................................................................. 9
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`V.
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`CONCLUSION ................................................................................................................ 10
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`i
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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 3 of 17 PageID #: 17716
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`TABLE OF AUTHORITIES
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`Page(s)
`
`Cases
`
`AGIS Software Dev. LLC v. Google LLC (“AGIS v. Google”),
`No. 5:22-cv-04826-BLF (N.D. Cal.) .......................................................................................... 2
`
`AGIS Software Dev. LLC v. Samsung Elecs. Co. et al., (“AGIS v. Samsung”),
`No. 5:22-cv-04825-BLF (N.D. Cal.) .......................................................................................... 2
`
`Finesse Wireless LLC v. AT&T Mobility LLC, No. 2:21-CV-00316-JRG-RSP,
`2022 WL 16636930 (E.D. Tex. Nov. 2, 2022) ........................................................................... 5
`
`His Americas Foundation LP v. DK Joint Venture 1,
`No. 4:09-cv-611, 2010 WL 3632763 (E.D. Tex. Sept. 10, 2010) .............................................. 7
`
`In re Google LLC, No. 2022-140-42,
`2022 WL 1613192 (Fed. Cir. May 23, 2022) ....................................................................... 2, 10
`
`Jang v. Bos. Scientific Corp.,
`532 F.3d 1330 (Fed. Cir. 2008) .................................................................................................. 6
`
`Personalized User Model, LLP v. Google Inc.,
`797 F.3d 1341 (Fed. Cir. 2015) .................................................................................................. 6
`
`Richards v. Quarterman,
`566 F.3d 553 (5th Cir. 2009) ...................................................................................................... 7
`
`Se. Texas EMS, L.L.C. v. Hopper,
`No. 1:07-cv-984, 2008 WL 11449423 (E.D. Tex. Oct. 14, 2008) .......................................... 7, 9
`
`Sw. Bell Tel. Co. v. City of El Paso,
`346 F.3d 541 (5th Cir. 2003) ...................................................................................................... 7
`
`
`
`ii
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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 4 of 17 PageID #: 17717
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`TABLE OF EXHIBITS
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`Exhibit No. Document
`Plaintiff’s Exhibits Filed With Plaintiff’s Opening Brief (Dkt. 163)
`Joint Stipulation and Order Regarding Deadlines for Supplemental Markman
`A
`Proceedings **As Modified by the Court** in AGIS Software Dev. LLC v.
`Google LLC (“AGIS v. Google”), No. 5:22-cv-04826-BLF (N.D. Cal.)
`Defendants’ Patent L.R. 4-2 Disclosure of Preliminary Claim Constructions and
`Evidence in AGIS v. Google
`Plaintiff’s Supplemental Preliminary Claim Constructions and Extrinsic
`Evidence Under Local Patent Rule 4-2 in AGIS v. Google
`December 6, 2023 Email from Mark Liang to Enrique Iturralde in AGIS v.
`Google
`Defendants’ Additional Exhibits Filed With This Brief
`1
`Defendants’ Notice of Motion and Motion for Summary Judgment, filed as Dkt.
`434 in AGIS Software Dev. LLC v. Google LLC (“AGIS v. Google”), No. 5:22-
`cv-04826-BLF (N.D. Cal.)
`Order Granting In Part and Denying In Part Defendants’ Motion for Summary
`Judgment, filed as Dkt. 470 in AGIS v. Google
`Transcript of November 6, 2023 Case Management Conference in AGIS v.
`Google
`November 7, 2023 Email from Mark Liang to Enrique Iturralde in AGIS v.
`Google
`November 17, 2023 Email from Enrique Iturralde to Mark Liang, with
`attachment, in AGIS v. Google
`AGIS’s Disclosure of Asserted Claims and Infringement Contentions
`AGIS’s Amended Disclosure of Asserted Claims and Infringement Contentions
`AGIS’s Second Amended Disclosure of Asserted Claims and Infringement
`Contentions
`AGIS’s Third Amended Disclosure of Asserted Claims and Infringement
`Contentions
`Excerpts from AGIS’s Exhibit B for U.S. Patent No. 9,749,829 to its Third
`Amended Disclosure of Asserted Claims and Infringement Contentions
`December 2, 2023 Email from Enrique Iturralde to Mark Liang
`
`B
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`C
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`D
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`2
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`3
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`4
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`5
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`6
`7
`8
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`9
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`10
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`11
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`iii
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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 5 of 17 PageID #: 17718
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`I.
`
`INTRODUCTION
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`
`
`AGIS’s belated attempt—over a year and half into the case—to inject a new claim
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`construction dispute over the term “remote control” should be denied because the dispute has no
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`relevance to this case. AGIS’s sole identified basis for seeking construction of “remote control”—
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`a term that appears only in the ’829 Patent—is that the term is being construed in AGIS’s case
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`against Google LLC in the Northern District of California (“NDCA”). What AGIS fails to explain,
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`however, is that the NDCA court is only construing “remote control” because the term’s meaning
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`is relevant to resolving AGIS’s allegations in that case against Google Maps—a product that is
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`not accused in this case. In this case against Samsung, the meaning of “remote control” is not
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`relevant to any of AGIS’s allegations regarding any of the products accused of infringing the ’829
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`Patent (or any other claim or defense in this case), and AGIS does not argue otherwise in its motion.
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`AGIS’s request for an improper advisory opinion should be rejected.
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`AGIS’s request should also be rejected as improper gamesmanship. AGIS is, in effect,
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`seeking to use this Court as a vehicle through which to litigate an issue, the meaning of “remote
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`control,” that is material only to the NDCA case and to do so before the NDCA court has a chance
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`to decide the issue. Indeed, in negotiating the schedule for supplemental claim construction
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`proceedings in the NDCA for “remote control,” AGIS rejected Google’s request to set a deadline
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`to complete briefing by the end of January 2024, instead seeking to prolong the schedule by
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`demanding additional deadlines for claim construction discovery and expert reports (which AGIS
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`does not propose here), such that the NDCA proceedings would not end until after March 2024.
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`Then, just days after AGIS secured a protracted schedule in the NDCA, AGIS informed Samsung
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`for the first time of its position that “remote control” requires a construction in this case too, despite
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`it having no relevance to this case, and proposed a schedule with claim construction briefing in
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`this case being completed by January 12, 2024—two months before briefing ends in the NDCA
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`1
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`

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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 6 of 17 PageID #: 17719
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`case and almost three months earlier than the briefing deadline AGIS initially proposed in that
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`case. AGIS’s motive is clear: AGIS seeks a construction of “remote control” from this Court on
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`an accelerated schedule, in the hopes of using that construction to preempt proceedings already
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`underway in the NDCA, where the meaning of the term is actually material to the case. AGIS’s
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`gamesmanship should not be tolerated, and its motion (Dkt. 163, “Mot.”) should be denied.
`
`II.
`
`PROCEDURAL BACKGROUND
`
`A.
`
`The AGIS I Actions That Were Transferred To The NDCA
`
`In November 2019, three years before AGIS filed this case, AGIS filed cases against
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`Samsung and Google in this Court asserting infringement of overlapping patents based on Google
`
`Maps for Mobile (“Google Maps”) and Find My Device (“FMD”).1 AGIS v. Samsung, Dkt. 1 ¶¶
`
`15-16; AGIS v. Google, Dkt. 1 ¶¶ 86–87. Against Google, AGIS asserted six patents, including
`
`all four patents at issue in this case, and accused Google Maps of infringing several of the patents,
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`including U.S. Patent No. 9,749,829 (’829 Patent). AGIS v. Google, Dkt. 1 ¶¶ 78-80, 86-87.
`
`Similarly, AGIS accused Samsung of infringing two patents, including the ’829 Patent, based on
`
`Google Maps running on Samsung devices. AGIS v. Samsung, Dkt. 1 ¶¶ 8-9, 15-16.
`
`The AGIS I cases proceeded through discovery in this Court until May 2022, when they
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`were transferred to the NDCA by the Federal Circuit. In re Google LLC, No. 2022-140-42, 2022
`
`WL 1613192 (Fed. Cir. 2022). After transfer, on April 3, 2023, Google moved for summary
`
`judgment that, among other things, Google Maps does not infringe the ’829 Patent, the only
`
`asserted patent with claims that include the term “remote control.”2 Ex. 1 at 17. On October 10,
`
`
`1 AGIS Software Dev. LLC v. Samsung Elecs. Co. et al., (“AGIS v. Samsung”), No. 5:22-cv-04825-
`BLF (N.D. Cal.); AGIS Software Dev. LLC v. Google LLC (“AGIS v. Google”), No. 5:22-cv-
`04826-BLF (N.D. Cal.) (the NDCA actions are collectively referred to herein as “AGIS I”).
`2 Google also moved for summary judgment that FMD does not infringe the ’829 Patent, but none
`of the bases for non-infringement for FMD relied on the “remote control” limitation. See Ex. 1 at
`12-17.
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`2
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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 7 of 17 PageID #: 17720
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`the NDCA court denied summary judgment of non-infringement of the ’829 Patent by Google
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`Maps, finding a dispute over the meaning of “remote control.” Ex. 2 (“SJ Order”) at 25-26. At a
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`November 6 case management conference, Google asked for supplemental claim construction
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`proceedings in light of the SJ Order to address the meaning of “remote control” and one other
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`term. Ex. 3 at 4-5. The NDCA court granted Google’s request, over AGIS’s vehement opposition
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`to further claim construction proceedings. Id. at 8 (AGIS’s counsel: “We don’t think that there’s
`
`any additional construction that’s necessary and that the case should stay in that way.”).
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`On November 7, Google sent AGIS a proposed supplemental claim construction schedule
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`that set January 30, 2024 as the deadline to complete briefing. Ex. 4. AGIS delayed responding
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`until November 17, when it counter-proposed a schedule that pushed the briefing deadline out to
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`April 4, 2024, and added deadlines for claim construction discovery and expert reports. Ex. 5.
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`The parties ultimately filed a stipulation with a schedule for supplemental claim construction
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`proceedings, which the NDCA court entered on November 27 (Ex. A), with the deadlines below:
`
`AGIS I NDCA Supplemental Claim Construction Deadline
`Exchange of Preliminary Claim Constructions and Extrinsic Evidence
`(Patent L.R. 4-2)
`Joint Claim Construction and Prehearing Statement and Expert Reports
`(Patent L.R. 4-3)
`End of Claim Construction Discovery (Patent L.R. 4-4)
`Plaintiff’s Opening Brief (Patent L.R. 4-5(a))
`Defendants’ Responsive Brief (Patent L.R. 4-5(b))
`Plaintiff’s Reply Brief (Patent L.R. 4-5(c))
`Claim Construction Hearing
`
`Deadline
`December 15, 2023
`
`January 19, 2024
`
`February 16, 2024
`March 4, 2024
`March 18, 2024
`March 25, 2024
`May 10, 2024
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`B.
`
`This Case
`
`On July 14, 2022, AGIS filed this case against Samsung, asserting the ’970, ’838, ’123,
`
`and ’829 Patents. Dkt. 1. The ’829 Patent is the only patent that recites the claim term “remote
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`control.” See Dkt. 29-3. AGIS’s initial infringement contentions accused only U.S. government
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`software (the TAK, ATAK, CivTAK applications, the “TAK applications”) and Samsung software
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`3
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`

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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 8 of 17 PageID #: 17721
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`(Knox Asset Intelligence and Knox Manage, the “Knox applications”) and did not assert any
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`claims against any Google-developed software. See Ex. 6. But on August 24, 2023, over a year
`
`into the case, AGIS obtained leave to amend its infringement contentions to assert, for the first
`
`time in this case, infringement of the ’970 and ’838 Patents by Google’s FMD. Dkt. 115 at 2.
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`Crucially, none of AGIS’s infringement contentions accuse Google Maps. See Exs. 6, 7,
`
`8, 9. The only Google software at issue in this case is Google’s FMD, which AGIS accuses of
`
`infringing the ’970 and ’838 Patents (not the ’829 Patent), neither of which has any claims reciting
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`“remote control.” See Ex. 9, Dkt. 29-1, Dkt. 29-2. AGIS asserts the ’829 Patent, the sole asserted
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`patent that recites “remote control,” against only the non-Google applications. Ex. 10.
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`On December 2—a month after the claim construction hearing in this case—AGIS
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`informed Samsung for the first time of its position that “remote control” in the ’829 Patent requires
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`construction in this case and that it intended to file a motion for leave for supplemental claim
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`construction. Ex. 11. AGIS also proposed a schedule for supplemental claim construction briefing
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`that (1) set the end of briefing on January 12, 2024—six weeks earlier than briefing is scheduled
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`to end in AGIS I and almost three months earlier than the briefing deadline AGIS initially proposed
`
`in AGIS I; and (2) omitted any of the claim construction discovery and related deadlines that AGIS
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`demanded in AGIS I, including deadlines for the P.R. 4-3 statement and claim construction
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`discovery under P.R. 4-4. Id. After Samsung opposed AGIS’s proposal, AGIS filed its motion.
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`III. LEGAL STANDARDS
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`When determining whether there is good cause to amend disclosures, courts in this District
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`consider four factors: “(1) the explanation for the failure to meet the deadline; (2) the importance
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`of the thing that would be excluded if the proposed amendment is not allowed; (3) potential
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`prejudice in allowing the thing that would be excluded; and (4) the availability of a continuance to
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`cure such prejudice.” Finesse Wireless LLC v. AT&T Mobility LLC, No. 2:21-CV-00316-JRG-
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`
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`4
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`

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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 9 of 17 PageID #: 17722
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`RSP, 2022 WL 16636930, at *2 (E.D. Tex. Nov. 2, 2022). In addition to the four factors, good
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`cause also “requires a showing of diligence.” Id. at *3.
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`IV. ARGUMENT
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`The importance factor alone is dispositive and requires denial of AGIS’s motion because
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`construction of “remote control” is not even relevant, let alone important, to AGIS’s infringement
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`theories for the products it accuses in this case. The other good cause factors also weigh against
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`granting leave, including the prejudice factor as any supplemental claim construction proceedings
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`would not conclude until after fact discovery closes and the parties are well into expert discovery.
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`Beyond the good cause factors, AGIS’s motion should also be denied as an improper attempt to
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`have this Court issue an advisory opinion on an issue that is material only in the AGIS I case before
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`the NDCA court presiding over the AGIS I case can decide the same issue.
`
`A.
`
`The Construction Of “remote control” Is Not Relevant, Much Less
`Important.
`
`AGIS’s sole identified basis for seeking construction of “remote control” in this case is the
`
`fact that the term is being construed in AGIS I in the NDCA. Mot. at 2-3. But the mere fact that
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`another court is construing the term in another case concerning a different defendant and different
`
`accused products does not make the meaning of that term relevant or important in this case, nor
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`does it impose a duty on this Court to construe the term.
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`While AGIS neglected to explain this fact in its motion, the meaning of “remote control”
`
`is irrefutably not material to any issue in this case. Its meaning is material only to AGIS’s
`
`allegation in AGIS I asserting the ’829 Patent against Google Maps—a product that is not accused
`
`in this case. The claim construction issue in AGIS I arose in the SJ Order when the NDCA court
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`found disputed issues as to Google’s non-infringement argument that “GMM [Google Maps
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`Mobile] does not infringe the ’829 Patent because it does not meet the ‘remote control’
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`5
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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 10 of 17 PageID #:
`17723
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`limitations.” Ex. 2 at 25-26. In particular, the SJ Order explained that there was an unresolved
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`claim construction dispute over “remote control.” Id. Google then requested supplemental claim
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`construction proceedings to resolve that dispute, which the NDCA court granted. Ex. 3 at 22-23.
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`There is no dispute that Google Maps is not accused in this case. Here, the only products
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`accused of infringing the ’829 Patent are the TAK and Knox applications, none of which are
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`accused in AGIS I. AGIS’s motion does not even attempt to argue that the meaning of “remote
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`control” could be relevant to its allegations against the products accused here. The meaning of
`
`“remote control,” thus, is not relevant—much less important—to any issue in this case. And
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`because the term’s meaning is not material to any disputed issue in this case, a construction of the
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`term by this Court would constitute an improper advisory opinion. See Jang v. Bos. Scientific
`
`Corp., 532 F.3d 1330, 1336 (Fed. Cir. 2008) (explaining that “Article III does not permit the courts
`
`to resolve issues when it is not clear that the resolution of the question will resolve a concrete
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`controversy between interested parties” and declining to render advisory opinion as to claim
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`construction issues that “do not actually affect the infringement controversy between the parties”);
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`Personalized User Model, LLP v. Google Inc., 797 F.3d 1341, 1350 (Fed. Cir. 2015) (declining to
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`provide an advisory opinion on “the meaning of a claim term that does not affect the merits”).
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`AGIS’s motion should, therefore, be denied under the importance factor alone.
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`B.
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`AGIS Waited Months To Seek Leave To Construe “remote control.”
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`AGIS’s motion should be denied for the independent reason that AGIS has been far from
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`diligent in seeking construction of “remote control.” AGIS has known about its dispute with
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`Google in AGIS I over the meaning of “remote control” since at least April 3, 2023—11 weeks
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`before the parties exchanged proposed terms for construction in this case on June 16, 2023 (Dkt.
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`67)—when Google filed its summary judgment motion in AGIS I, which presented a non-
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`infringement defense based on “remote control.” Ex. 1 at 17. The NDCA court’s October 10,
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`6
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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 11 of 17 PageID #:
`17724
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`2023 SJ Order further highlighted the dispute over “remote control” by explicitly identifying an
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`unresolved dispute over the term’s meaning. Ex. 2 at 25-26. Instead of proposing to construe the
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`term in this case, either in its April 28 Local P.R. 4-1 disclosure after receiving Google’s April 3
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`summary judgment motion or by seeking leave after the NDCA court’s October 10 SJ Order, AGIS
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`waited eight months to file its motion. A delay of eight months is anything but timely. See Sw.
`
`Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546–47 (5th Cir. 2003) (affirming denial of
`
`amendment where movant “was aware of the [fact] that forms the basis of its proposed amendment
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`months in advance of the deadline and [did] not offer a satisfactory explanation for its delay in
`
`seeking leave to amend”); Se. Texas EMS, L.L.C. v. Hopper, No. 1:07-cv-984, 2008 WL 11449423,
`
`at *3 (E.D. Tex. Oct. 14, 2008) (“Plaintiff inexplicably delayed for eight months before seeking
`
`leave to amend; this lack of diligence simply does not establish the requisite ‘good cause.’”).
`
`AGIS did not argue in its motion that the construction of “remote control” is relevant to its
`
`infringement theories for the TAK and Knox applications accused in this case. To the extent AGIS
`
`tries to argue that in its reply for the first time, such an argument would be waived. His Americas
`
`Foundation LP v. DK Joint Venture 1, No. 4:09-cv-611, 2010 WL 3632763, at *3 n.2 (E.D. Tex.
`
`Sept. 10, 2010) (“Issues raised in a reply brief for the first time are waived”) (citing Richards v.
`
`Quarterman, 566 F.3d 553, 562 n. 2 (5th Cir. 2009)). Such an argument would also fail to show
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`diligence because the TAK and Knox applications have been at issue since AGIS served its original
`
`infringement contentions on December 1, 2022. Ex. 6 at 2-3. AGIS, therefore, could and should
`
`have identified any material dispute over “remote control” earlier, as part of claim construction
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`proceedings in this case that started in April 2023—not now, after the Court has issued its claim
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`construction order and with just a month left in fact discovery. AGIS has no justification for its
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`delay in seeking leave, which is further reason its motion should be denied.
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`7
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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 12 of 17 PageID #:
`17725
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`C.
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`Granting Leave Would Prejudice Samsung And Require A Continuance.
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`AGIS argues that there is no prejudice because “Counsel for Defendants raised this dispute
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`in the NDCA action” and no continuance will be needed. Mot. at 3. But AGIS again ignores that
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`Samsung is not currently a party to the NDCA proceeding where “remote control” is being
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`construed. In addition, the meaning of “remote control” in the NDCA action is relevant only to
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`allegations against Google Maps, which is not part of this case. See Exs. 6, 7, 8, 9. Granting
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`AGIS’s request to inject that dispute over “remote control” into this case would unfairly prejudice
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`Samsung by forcing it to waste time and resources on briefing and oral argument for a term that is
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`not material to any issue. And no continuance would cure such prejudice. It would also waste the
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`Court’s resources, as the Court would have to prepare for and hold yet another claim construction
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`hearing and issue another order, which would amount to an advisory opinion given the term’s
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`irrelevance to AGIS’s infringement theories in this case.
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`Moreover, contrary to AGIS’s assertion, granting leave for supplemental claim
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`construction proceedings would require a continuance of the case schedule, including trial. Mot.
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`at 3. Fact discovery closes on February 6, 2024, and opening expert reports are due a week later
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`on February 13. Dkt. 121 at 3. Even if the Court grants AGIS’s motion immediately after briefing
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`is completed in mid-January 2024 and even accepting AGIS’s proposed claim construction
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`briefing schedule that sets four weeks to complete briefing, briefing would not be complete until
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`after the current deadline for the close of fact discovery (February 6). A claim construction hearing
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`and order would then likely come weeks later, well into or even after expert discovery.
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`Further, AGIS’s proposed, expedited schedule improperly skips over the Local P.R. 4-2
`
`(proposed constructions and extrinsic evidence), P.R. 4-3 (joint claim construction statement and
`
`expert reports), and P.R. 4-4 (claim construction discovery) deadlines, all of which AGIS
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`demanded to include in the ongoing supplemental claim construction proceedings in AGIS I in the
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`8
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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 13 of 17 PageID #:
`17726
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`NDCA. While AGIS contends that “the parties exchanged proposed constructions for the term
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`‘remote control’ on Friday, December 15, 2023” in the NDCA AGIS I action (Mot. at 2), AGIS
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`ignores that the current supplemental proceeding in the NDCA is between AGIS and Google.
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`Samsung is currently not a party to that supplemental proceeding in the NDCA. While there is a
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`separate AGIS I case between AGIS and Samsung in the NDCA, Google Maps is accused in that
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`case, unlike here. Accordingly, the schedule that AGIS proposes for this case is neither realistic
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`nor fair to Samsung. Samsung would need an opportunity to serve its own proposed construction,
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`extrinsic evidence, expert report, and engage in claim construction discovery. At the same time,
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`however, including these additional deadlines would only further delay the completion of AGIS’s
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`requested supplemental claim construction proceeding, well past expert discovery in this case.
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`Because granting leave would require continuing the case schedule, including trial, the
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`prejudice and continuance factors weigh against granting leave. See Se. Texas EMS, 2008 WL
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`11449423, at *3 (denying leave to amend where a continuance would “not obviate [non-movant’s]
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`extra costs and would effectively reward Plaintiff for its unexplained delay”).
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`D.
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`AGIS Should Not Be Permitted To Preempt The AGIS I Claim Construction
`Process.
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`AGIS’s motion for leave should also be denied as an improper attempt to preempt the
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`supplemental claim construction proceeding in AGIS I in the NDCA, which have already been
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`underway since November 27, 2023. See Ex. A. Indeed, in negotiating the schedule for that
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`proceeding, AGIS demanded and secured a protracted schedule with interim deadlines for claim
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`construction discovery and expert reports, such that claim construction briefing would not finish
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`until March 2024. See Exs. 5, A. Only after AGIS secured this protracted schedule in AGIS I did
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`AGIS inform Samsung, for the first time, of its position that “remote control” requires a
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`construction in this case, too, despite the term having no relevance to this case. AGIS also
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`proposed an expedited claim construction schedule for this case that skipped over the interim claim
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`construction disclosure and discovery deadlines that are required by this District’s Patent Rules
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`(P.R. 4-2 to P.R. 4-4) and that AGIS insisted on having in the NDCA, so claim construction
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`briefing in this case could complete six weeks before claim construction briefing is scheduled to
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`end in AGIS I. See Exs. 11, A. AGIS’s blatant gamesmanship should not be rewarded. Rather,
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`its improper attempt to use this Court as a vehicle to obtain an advisory construction of “remote
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`control,” solely to preempt the NDCA court’s construction of the term, should be rejected.3
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`V.
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`CONCLUSION
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`For the reasons above, Samsung respectfully requests the Court deny AGIS’s motion for
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`leave for supplemental claim construction to address the meaning of “remote control.”
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`
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`Dated: January 9, 2023
`
` /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
`
`
`3 AGIS’s motion and its request to inject into this action issues that are only relevant to AGIS I in
`the NDCA is further evidence that Samsung’s pending motion to sever and transfer to the NDCA
`claims against Google’s FMD (Dkt. 117) should be granted. The interests of judicial economy
`and avoidance of inconsistent outcomes (including claim construction outcomes) compel having
`AGIS’s allegations against Google software handled by a single forum. The Federal Circuit has
`already ruled that AGIS’s allegations against FMD and Google Maps should be handled in the
`NDCA, in ordering transfer of AGIS I to the NDCA. In re Google LLC, 2022 WL 1613192. In
`light of that decision, and the fact that the NDCA has already been handling AGIS’s overlapping
`allegations against FMD since AGIS I was transferred there in May 2022, Samsung’s motion to
`sever and transfer the FMD claims to the NDCA should be granted.
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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 15 of 17 PageID #:
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`Tyler, Texas 75702
`(903) 657-8540
`(903) 657-6003 (fax)
`
`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
`
`Darin W. Snyder (pro hac vice)
`dsnyder@omm.com
`Luann Simmons (pro hac vice)
`lsimmons@omm.com
`Mark Liang (pro hac vice)
`mliang@omm.com
`Bill Trac
`btrac@omm.com
`Sorin Zaharia
`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
`Cason G. Cole
`
`Texas State Bar No. 24109741
`ccole@omm.com
`O’MELVENY & MYERS LLP
`2501 North Harwood Street, Suite 1700
`
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`Case 2:22-cv-00263-JRG-RSP Document 173 Filed 01/09/24 Page 16 of 17 PageID #:
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`Dallas, TX 75201-1663
`Telephone: (972) 360-1900
`Facsimile: (972) 360-1901
`
`ATTORNEYS FOR DEFENDANTS
`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA,
`INC.
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`CERTIFICATE OF SERVICE
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`
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`I hereby certify that all counsel of record who are deemed to have consented to
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`electronic service are being served with a copy of this document via electronic mail.
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`
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`/s/ Melissa R. Smith
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`13
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