`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS, AMERICA,
`INC.,
`
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`SAMSUNG’S SUR-REPLY IN FURTHER SUPPORT OF ITS OPPOSITION TO
`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S OPPOSED MOTION FOR
`LEAVE TO REQUEST SUPPLEMENTAL CLAIM CONSTRUCTION
`
`
`
`Case No. 2:22-cv-00263-JRG-RSP
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`Case 2:22-cv-00263-JRG-RSP Document 180 Filed 01/24/24 Page 2 of 9 PageID #: 18383
`
`
`
`AGIS’s argument, raised for the first time in reply, that the construction of “remote control”
`
`is important to its allegations against non-Google software—specifically Samsung’s “Knox”
`
`applications (Knox Asset Intelligence, Knox Manage) and U.S. government’s “TAK” applications
`
`(TAK, ATAK, CivTAK)—is waived, unsupported, and disingenuous. Before its reply, the only
`
`basis AGIS offered for construing “remote control” was that it was also being construed in the
`
`AGIS I NDCA case against Google, where its meaning is relevant to AGIS’s allegations against
`
`the location sharing feature of Google Maps for Mobile (“Google Maps”). Google Maps has never
`
`been part of this case. And now that AGIS and Google “have reached an agreement in principle
`
`to settle all matters related to Google products,” Dkt. 175, it cannot be part of this case or the basis
`
`for AGIS’s Motion.
`
`To the extent the construction of “remote control” has any relevance to AGIS’s allegations
`
`against Knox and TAK, which it does not, AGIS cannot meet the good cause factors. Knox and
`
`TAK have been accused since the outset of this litigation. Thus, if “remote control” were important
`
`to Knox and TAK, AGIS should have raised a dispute over its meaning when claim construction
`
`proceedings in this case started in April 2023—rather than now, eight months later. Moreover,
`
`AGIS’s newfound reliance on Knox and TAK only heightens the prejudice against Samsung.
`
`Samsung is not and was not a party to the AGIS I NDCA claim construction proceeding, had no
`
`input on Google’s construction of the term in AGIS I, and has never had an opportunity to consider
`
`the term’s meaning in the context of AGIS’s allegations about Knox and TAK. Yet, under AGIS’s
`
`proposed expedited schedule, Samsung would be forced to defend a construction that Google
`
`proposed in another case addressing different issues. AGIS’s Motion should be denied.
`
`I.
`
`CONSTRUCTION OF “REMOTE CONTROL” IS NOT IMPORTANT
`
`In its opening Motion, AGIS’s sole basis for seeking construction of “remote control” in
`
`this case was that the NDCA court was also construing the term in the AGIS I case, where only
`
`1
`
`
`
`Case 2:22-cv-00263-JRG-RSP Document 180 Filed 01/24/24 Page 3 of 9 PageID #: 18384
`
`
`
`Google software was accused. Dkt. 163 (“Mot.”). With AGIS and Google having settled in
`
`principle, which resulted in a stay of the AGIS I case and the portion of this case relating to Google
`
`software, Dkt. 176, AGIS’s reply takes a new tact that is waived and has no merit.
`
`AGIS now asserts that the meaning of “remote control” is relevant to its accusations against
`
`Knox and TAK. But AGIS did not even mention Knox or TAK in its opening Motion, much less
`
`argue any alleged relevance of “remote control” to those applications. See Mot. AGIS’s belated
`
`argument that “remote control” is relevant to Knox and TAK was, therefore, waived. E.g., 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)).
`
`It is not surprising that AGIS did not raise Knox and TAK before because the meaning of
`
`“remote control” is irrelevant to whether those products infringe. AGIS’s reply fails to show
`
`otherwise. Indeed, beyond merely noting that “remote control” appears in claims of the ’829
`
`Patent asserted against Knox and TAK, AGIS provides no explanation for how the term’s
`
`construction could impact the infringement analysis. See Reply at 2. AGIS also proposes having
`
`Samsung defend and argue the construction of “remote control” that Google proposed in the AGIS
`
`I NDCA case, in lieu of Samsung proposing its own construction via a Local P.R. 4-2 disclosure
`
`in this case. But AGIS fails to explain how Google’s construction, proposed in connection with
`
`infringement allegations for Google Maps, could affect the infringement analysis for Knox and
`
`TAK in this case. Nor does AGIS contend that Knox and TAK operate in a materially similar way
`
`to Google Maps’s location sharing feature with respect to the “remote control” limitation.
`
`At bottom, the meaning of “remote control” is not relevant, let alone important, to AGIS’s
`
`infringement allegations against the Knox and TAK applications accused in this case. AGIS’s
`
`
`
`2
`
`
`
`Case 2:22-cv-00263-JRG-RSP Document 180 Filed 01/24/24 Page 4 of 9 PageID #: 18385
`
`
`
`request that the Court give an advisory construction of the term should be rejected.
`
`II.
`
`AGIS DELAYED FOR MONTHS IN RAISING THE DISPUTE
`
`AGIS’s arguments on diligence contradict its new arguments under the importance factor
`
`and are wrong. While AGIS now cites exclusively to non-Google software (Knox and TAK)
`
`under the importance factor, AGIS continues to cite the AGIS I NDCA case concerning Google
`
`software and the supplemental claim construction proceedings in that case as a recent, intervening
`
`development under the diligence factor. AGIS cannot have it both ways.
`
`On the one hand, to the extent AGIS argues that the meaning of “remote control” is
`
`important to Knox and TAK, AGIS has no excuse for its delay. Reply at 2. Knox and TAK have
`
`been accused since December 2022 as part of AGIS’s original infringement contentions. Thus,
`
`AGIS should have known about any dispute over “remote control” since at least December 2022
`
`and should have raised that dispute as part of claim construction proceedings in this case that
`
`started in April 2023—not now, eight months later and two weeks before the close of fact
`
`discovery. AGIS also cannot point to AGIS I to justify supplemental claim construction here
`
`because the AGIS I case has nothing to do with Knox and TAK.
`
`On the other hand, to the extent AGIS contends that it has been diligent in filing its Motion
`
`following recent developments in AGIS I, that case addresses only Google software. AGIS cannot,
`
`at the same time, justify supplemental claim construction in this case by pointing to different, non-
`
`Google software under the importance factor. And if AGIS’s Motion is based on Google software,
`
`its Motion should be stayed pursuant to this Court’s order staying all proceedings “involving
`
`Google products” pending settlement between AGIS and Google. Dkt. 176.
`
`Regardless, even if AGIS’s and Google’s dispute over the term “remote control” is the
`
`relevant intervening development (which it is not), AGIS was not diligent. AGIS argues that it
`
`diligently filed its Motion just days after the dispute over the meaning of “remote control”
`
`
`
`3
`
`
`
`Case 2:22-cv-00263-JRG-RSP Document 180 Filed 01/24/24 Page 5 of 9 PageID #: 18386
`
`
`
`materialized on December 15, 2023, when Google and AGIS exchanged proposed constructions
`
`for the term in the AGIS I NDCA case. Reply at 2. That is incorrect. As explained in Samsung’s
`
`Opposition, the dispute was apparent since at least June 16, 2023, when Google filed its summary
`
`judgment motion in the AGIS I NDCA case, which presented a non-infringement defense based
`
`on the meaning of “remote control.” Ex. 1 at 17 (“[AGIS’s argument] relies on an unreasonably
`
`broad interpretation of ‘remote control’….). The dispute was confirmed by the NDCA court’s
`
`October 10, 2023 summary judgment order that explicitly found a dispute over the meaning of the
`
`term. Ex. 2 at 25-26 (finding a “genuine issue of material fact as to whether ‘one device [can]
`
`‘remotely control’ any other device’” and applying AGIS’s construction of “remote control” for
`
`summary judgment purposes only). Given these facts, AGIS’s claim that the dispute only
`
`materialized in December 2023 is baseless. Rather, AGIS delayed for several months to raise its
`
`dispute, which is far from diligent, particularly given the late stage of this case with Markman
`
`proceedings having concluded in November 2023, and fact discovery ending in two weeks.
`
`III. GRANTING LEAVE WOULD PREJUDICE SAMSUNG
`
`Like with diligence, AGIS’s arguments on prejudice also rely on the AGIS I NDCA case
`
`concerning Google software and, thus, contradict its untimely reply argument that the construction
`
`of “remote control” is important to the non-Google software (Knox and TAK) that are at issue in
`
`this case. Indeed, AGIS’s reliance on Knox and TAK for importance only highlights the
`
`prejudice. Samsung has never had an opportunity to consider the meaning of “remote control” in
`
`the context of the allegations and defenses at issue in this case. Yet AGIS seeks to deny Samsung
`
`an opportunity to even propose its own construction for the term, assuming the Court agrees to
`
`proceed with claim construction in the first place, by foregoing the Local P.R. 4-2, 4-3, and 4-4
`
`disclosures. AGIS, thus, proposes to force Samsung to waste time and resources defending a
`
`construction that Google proposed in the NDCA for a term that is not material in this case.
`
`
`
`4
`
`
`
`Case 2:22-cv-00263-JRG-RSP Document 180 Filed 01/24/24 Page 6 of 9 PageID #: 18387
`
`
`
`AGIS argues that there is no prejudice because Google, a third party, and AGIS have
`
`already exchanged proposed constructions for “remote control” in the AGIS I NDCA case and
`
`because Samsung and Google are represented by the same counsel. Reply at 3. But Samsung is
`
`not a party to the NDCA proceeding. That Samsung and Google have overlapping counsel does
`
`not change the fact that Samsung cannot and should not be bound to the proposed construction,
`
`evidence, and arguments of third-party Google in the NDCA proceeding in which Samsung has
`
`no involvement. Moreover, any purported tie between Samsung and the AGIS I NDCA case does
`
`not remove the prejudice to Samsung in this case because the competing constructions over
`
`“remote control” in the NDCA case were proposed to address infringement for Google Maps,
`
`which is not part of this case, not the Knox and TAK applications accused in this case.
`
`Finally, AGIS’s contention that a continuance is not required disregards the remaining
`
`timeline of this case. AGIS does not dispute that supplemental claim construction proceedings,
`
`even under its proposed expedited schedule, would not finish for at least another two months at
`
`the earliest, at which point the March 22, 2024 expert discovery cutoff would have passed. And
`
`supplemental proceedings would take two months longer, if, following the local rules, the parties
`
`were to complete the Local P.R. 4-2, 4-3, and 4-4 deadlines, so Samsung could actually have an
`
`opportunity to propose its own construction and supporting evidence. Under that schedule,
`
`supplemental proceedings would not finish until after dispositive and Daubert motions are fully
`
`briefed. Thus, a continuance of the entire case schedule, including trial, would be needed to avoid
`
`the clear prejudice imposed by AGIS’s proposed supplemental claim construction proceeding.
`
`IV. CONCLUSION
`
`For the reasons above and in Samsung’s Opposition, Samsung respectfully requests the
`
`Court deny AGIS’s Motion for leave for supplemental claim construction of “remote control.”
`
`
`
`
`
`5
`
`
`
`Case 2:22-cv-00263-JRG-RSP Document 180 Filed 01/24/24 Page 7 of 9 PageID #: 18388
`
`
`
`Dated: January 24, 2024
`
`_
`
` /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)
`
`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
`
`
`
`6
`
`
`
`Case 2:22-cv-00263-JRG-RSP Document 180 Filed 01/24/24 Page 8 of 9 PageID #: 18389
`
`
`
`
`
`
`
`
`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
`Dallas, TX 75201-1663
`Telephone: (972) 360-1900
`Facsimile: (972) 360-1901
`
`ATTORNEYS FOR DEFENDANTS
`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA,
`INC.
`
`
`
`7
`
`
`
`Case 2:22-cv-00263-JRG-RSP Document 180 Filed 01/24/24 Page 9 of 9 PageID #: 18390
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that all counsel of record who are deemed to have consented to electronic
`
`service are being served with a copy of this document via electronic mail.
`
`
`
`
`
`
`
`/s/ Melissa R. Smith
`
`
`
`
`8
`
`