Case 2:22-cv-00263-JRG-RSP Document 55-1 Filed 04/24/23 Page 1 of 31 PageID #: 1762
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`Exhibit A
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`Exhibit A
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`Case 2:22-cv-00263-JRG-RSP Document 55-1 Filed 04/24/23 Page 2 of 31 PageID #: 1763
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`THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`* * * * *
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`AGIS SOFTWARE DEVELOPMENT, LLC * 2:22-CV-263-JRG-RSP
` * Marshall, Texas
`VS. *
` * 9:00 - 10:45 a.m.
`SAMSUNG ELECTRONICS, LTD, ET AL * March 30, 2023
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`* * * * *
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`MOTION HEARING
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`BEFORE JUDGE ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
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`* * * * *
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`Proceedings recorded by computer stenography
`Produced by computer-aided transcription
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`Case 2:22-cv-00263-JRG-RSP Document 55-1 Filed 04/24/23 Page 3 of 31 PageID #: 1764
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`APPEARANCES:
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`For the Plaintiff:
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`MR. VINCENT J. RUBINO, III
`MR. ENRIQUE W. ITURRALDE
`Fab ricant, LLP
`230 Park Avenue, 3rd Floor W.
`New York, NY 10169
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`MS. JENNIFER L. TRUELOVE
`McK ool Smith, PC
`104 E. Houston Street
`Suite 300
`Marshall, TX 75670
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`For CenturyLink:
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`MR. NIEL P. SIROTA
`Bak er Botts, LLP
`30 Rockefeller Plaza, 44th Floor
`New York, NY 10112
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`MS. MELISSA R. SMITH
`Gil lam & Smith, LLP
`303 South Washington Avenue
`Tyler, TX 75701
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`Courtroom Deputy:
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`BECKY ANDREWS
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`Court Reporter:
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`EDWARD L. REED
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`P R O C E E D I N G S
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`9:00 A.M. - MARCH 30, 2023
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`THE COURT: For the record, we're here for the
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`Motion Hearing in AGIS Software Development vs. Samsung
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`Electronics. It's Case No. 2:22-263 on our docket.
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`Would counsel state their appearances for
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`the record.
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`MS. TRUELOVE: Good morning, Your Honor.
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`Jennifer Truelove with McKool Smith here for the
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`Plaintiff, AGIS. With me today I have Mr. Vincent
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`Rubino and Mr. Enrique Iturralde, and we are ready to
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`proceed.
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`THE COURT: All right. Thank you,
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`Ms. Truelove.
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`MS. SMITH: Good morning, Your Honor. Melissa
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`Smith on behalf of Samsung, and I'm joined by Mr. Neil
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`Sirota this morning, and we are also ready to proceed.
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`THE COURT: All right. Thank you, Ms. Smith.
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`We are here on Samsung's motion, so I'll
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`turn it over first to Mr. Sirota.
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`MR. SIROTA: Thank you, Your Honor. We have
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`two motions pending. There are a Motion to Stay and a
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`Motion to Dismiss. Does Your Honor have a preference as
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`to which one is heard first?
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`THE COURT: Yes, I think the Motion to Dismiss
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`is where we should start.
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`MR. SIROTA: Thank you, Your Honor.
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`I also have some presentations, some
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`slides to present, and I also have hard copies if I may
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`approach.
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`THE COURT: That would be great. Thank you.
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`[Pause ]
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`MR. SIROTA: Thank you, Your Honor.
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` So Samsung has a Motion to Dismiss and it
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`involves two distinct issues. First, there is a
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`request to dismiss AGIS's infringement allegation
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`against the Team Awareness Kit (or TAK) suite of apps
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`pursuant to 28 U.S.C. 1498(a). And second, there is a
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`request to dismiss AGIS's allegations of infringement
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`as to two of the asserted patents, the '829 and '123
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`patents, due to improper claim splitting.
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`So I'll address the TAK issue first, Your
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`Honor. And on slide 3 we see an excerpt from AGIS's
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`Amended Complaint where AGIS is asserting infringement
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`by three apps here: the TAK, ATAK, and CivTAK
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`applications. Those are accused products. And as we'll
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`see, those apps are made by and owned by the United
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`States Government, not Samsung. Samsung has nothing to
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`do with those apps.
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`And that in turn implicates 28 U.S.C.
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`manufactured by the U.S. Government. And presumably,
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`Samsung, the party with the burden here, has access to
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`its own contracts with the U.S. Government, with PAR,
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`they did not come forward with here.
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`THE COURT: All right.
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`MR. RUBINO: Thank you, Your Honor.
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`THE COURT: Thank you, Mr. Rubino.
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`MR. SIROTA: I have nothing further, Your
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`Honor.
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`THE COURT: All right, then you can move on to
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`the second aspect of your Motion to Dismiss.
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`MR. SIROTA: Thank you, Your Honor.
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` So, moving on to the second part of the
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`Motion to Dismiss, here Samsung is seeking dismissal of
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`AGIS's allegations of infringement of the '829 and '123
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`patents due to improper claim splitting.
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` And before I get into the legalities of
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`it, I thought it would be helpful to just give an
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`overlook of the timeline of the cases that AGIS has
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`brought that's relevant to this particular motion, and
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`there are two of them.
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`The first term, which we term as AGIS I --
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`I believe AGIS refers to it as AGIS Samsung 1 -- was
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`brought back in November of 2019. And in that case
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`they just alleged infringement by 269 Samsung Galaxy
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`devices of two patents, the '123 and '829 patents. Two
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`and a half years later AGIS brought the current case,
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`which we've called AGIS II in our briefing, and again
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`alleged infringement of a substantively identical list
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`of 264 Galaxy products, and again alleged infringement
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`of the '123 and '829 patents.
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`And just to finish out the timeline, AGIS
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`amended its Complaint here in December of 2022, and the
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`status of the AGIS I case is that it was transferred to
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`the Northern District of California and has since been
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`stayed by agreement of the parties. So that's the state
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`of play here with respect to this claim splitting
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`motion.
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` And here's the issue. This is the law on
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`claim splitting. Plaintiff must "raise in a single
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`lawsuit all the grounds of recovery from a particular
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`transaction." And that's important that it's the
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`transaction that courts look at when discussing and
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`considering claim splitting and unrelated doctrines.
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`And here I don't think there's a dispute,
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`but I've said this before and been wrong. The same
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`transactions that were at issue in AGIS I are at issue
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`again in AGIS II. And again, the transactions are the
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`making, using, selling, offer for sale or importation
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`of the Galaxy devices.
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`AGIS's Amended Complaint here alleges
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`infringement of the same patent, the same two patents
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`that were at issue in AGIS I. And AGIS's Amended
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`Complaint alleges infringement by the same devices.
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`And that's all that's relevant here. We understand
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`they are alleging that there are different apps and
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`different features at issue in each, but that's part
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`of the problem and it's not relevant or it doesn't
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`determine whether there is improper claim splitting.
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` And just to show an example, you know, how
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`this plays out here, Your Honor, on this slide here,
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`this is the Samsung Galaxy S10. It's accused in the
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`AGIS I case and it's accused in the AGIS II case. And
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`between those two complaints in those two cases, there
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`are five apps at issue that are alleged to be on these
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`phones and that are infringing.
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`In the AGIS I case three apps are at
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`issue: The Find my Mobile app, which is a Samsung app
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`to help locate lost devices; the Find my Device app,
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`which is a Google app to locate devices; and Google
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`Maps, which has location features that were alleged to
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`infringe on AGIS I.
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`In AGIS II, the current case, AGIS says
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`well, we're not going to allege -- you know, we're
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`going to allege these products infringe in that by
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`making, using and selling of them infringes, but we're
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`going to steer clear of we alleged last time. We are
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`not going to allege Samsung Knox and this U.S.
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`Government TAK app infringe.
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`Those are the allegations in AGIS II, and
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`that's textbook claim splitting. That's what the
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`Federal Circuit says you can't do. And the case right
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`on point here is this PersonalWeb Tech case. And the
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`Federal Circuit looked at the same issue, almost
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`identical.
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`You had a plaintiff, PersonalWeb, suing
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`or filing a prior suit -- or actually, it was a
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`declaratory judgment brought by Amazon, and
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`infringement was litigated on their product, the Amazon
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`S3, and then the plaintiff came back and sued Amazon
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`customers for infringement based on the Amazon product.
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`And PersonalWeb said, hey, wait a minute,
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`in the earlier case we alleged one feature, and in
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`these current cases against the customers we're
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`alleging something else. And the decision in the
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`Federal Circuit considered that and did find that there
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`was actually overlap. So PersonalWeb was wrong about
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`that, there was overlap between the allegations.
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`But then the Federal Circuit said, what's
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`important here, that doesn't matter. Regardless of the
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`breadth of the specific infringement theories, it's
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`clear that the Complaints relate to the same set of
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`transactions.
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`THE COURT: Well, I think that it is clear
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`that if what is being accused in the second case is a
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`feature that was inherent in the accused
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`instrumentality in the first case, but just not focused
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`on, that that would be an improper claim splitting.
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`And I guess what I'm trying to deal with
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`here is the fact that in PersonalWeb there was no
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`physical device, as I understand it. Pe rsonalWeb dealt
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`with a software technique, a manner of dealing with
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`data, and that was at issue in both or all of the
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`cases.
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`Here it may be a difference without a
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`distinction, but there is a difference in that here we
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`have physical devices and applications. And what I'm
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`trying to figure out is does the fact that it's the
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`same physical device mean that there can't be a
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`separate suit if the applications that were at issue in
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`one case are different from the applications that are
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`at issue in another case.
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` Do you contend that all of the
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`functionality that is at issue in this case, which
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`we'll call AGIS II, was also on the phones or devices
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`that were accused in AGIS I?
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`MR. SIROTA: I want to be clear about this,
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`Your Honor, because you do raise a good point. We're
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`relying at the allegations in the Complaint. We're
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`looking at the Complaint. The Complaint alleges all of
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`these apps were on all of the phones. That may not the
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`case in actual practice. I mean, there may have been
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`phones, and I'm sure there was, that didn't have TAK
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`before and don't have TAK now.
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`So you raise a good point. We are relying
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`on the allegations in the Complaint. The infringement
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`allegations that are being pursued that were pursued in
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`AGIS I has the allegation that all of those apps were
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`on those products. In AGIS II, AGIS is alleging all of
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`those products have all of the accused applications,
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`and that's claim splitting based on the face of the
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`Complaint.
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`THE COURT: Well, in AGIS I the apps that you
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`pointed to in your previous slide, those probably came
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`loaded on all of the accused products, and I would
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`think that they are inherent in those products.
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`Is that your understanding as well?
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`MR. SIROTA: Some did, some didn't. They were
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`not all pre-loaded on all of the accused products in
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`that list. Some were. Some of them were pre-loaded on
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`some products, some were not pre-loaded. It was a
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`mixed bag, Your Honor, delving into the facts.
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`THE COURT: Well, is it your understanding of
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`the Amended Complaint in this case that they are only
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`accusing devices that have the Knox or TAK apps loaded
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`on them, or that they are accusing all devices because
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`they could?
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`MR. SIROTA: As I read the Complaint, it's
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`alleging that they are pre-loaded on the devices. The
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`Complaint says that they are adapted for -- and I
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`forget the language. But maybe the short answer is our
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`understanding of what the Complaint says is that they
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`are all loaded -- they are all pre-loaded and all of
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`those phones are accused. If they weren't on the
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`phone, then they shouldn't be accused.
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`THE COURT: Well, it does seem to me that
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`there is at least theoretically a difference between a
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`feature and an app, that these phones have all sorts of
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`features. And I think you are completely right that a
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`plaintiff can't just say, "I'm going to accuse these
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`features in one suit and I'm going to accuse different
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`features that were also present in the first suit in a
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`second suit."
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`Do you have any case law that is closer to
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`the issue we have here about a physical device and
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`whether or not certain apps or software are loaded on
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`it?
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`MR. SIROTA: Well, let me just go back to a
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`point Your Honor raised earlier, that the PersonalWeb
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`case did not the product, it was a service or feature.
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`That was software. So there was software that had
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`multiple features. I see the analogy. You know, if
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`nothing else, I think it's very analogous. I don't
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`really -- we don't believe there is a distinction
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`between a product that has multiple features, a
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`physical phone, and a software product that has
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`multiple features. So I'll say that.
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`As to your question as to whether there is
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`a case that addresses this specific issue where there
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`is a device that has apps on it, I haven't seen one.
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`I don't know that there is one. But again, we think
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`PersonalWeb is pretty darn close.
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` And as to your question or thinking
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`about, well, some of the phones may not have had the
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`app, some accused phones here may not have the app, I
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`think, as I said earlier, that's a fair question and
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`worth considering. But I would also go back to those
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`aren't the allegations. The allegations are every
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`phone has the app. And if it doesn't, it shouldn't be
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`accused. There should have been some investigation on
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`this.
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`As the Complaint stands, it alleges -- if
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`you read them together, it alleges that, for example,
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`the Samsung S10 has all of these apps. Those are what
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`the Complaints read together say, and that gives rise
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`to improper claim splitting.
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`THE COURT: This may be outside the record,
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`but I'm going to ask anyway. I mean, my assumption is
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`that the S10, which is a very widely marketed cell
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`phone, does not usually have this TAK application on it.
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`MR. SIROTA: I think that's a fair assumption,
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`Your Honor.
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`THE COURT: And I guess I would say the same
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`thing about Knox, although I know nothing about Knox.
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`MR. SIROTA: I believe that's right. Again,
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`you know, we're looking at this as a matter of law
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`based on the face of the Complaints and the Motion to
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`Dismiss context. But you're right, the facts may have
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`end up showing something, that there is a set where
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`they are overlapping and where they are not. And it
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`could be different, but that's not what the Complaints
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`are alleging.
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`THE COURT: The allegations in AGIS I that
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`were relating to the apps -- and frankly, my
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`involvement with AGIS I was primarily all about venue
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`and not about the various apps. And I understand that
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`the Plaintiff has talked a lot about Samsung's
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`references to Google apps in that case. It's my
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`recollection that Samsung was focused on the Google
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`apps in order to persuade the Court that all of the
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`Google employees in California would be persons with
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`relevant knowledge and that relates to the venue issue.
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`I don't recall a discussion about how the infringement
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`would actually be shown.
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`But anyway, let me hear from the Plaintiff
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`about this issue and I'll give you a chance to respond,
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`Mr. Sirota.
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`MR. SIROTA: Thank you, Your Honor.
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`THE COURT: Thank you.
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`MR. RUBINO: Your Honor, if this were 10
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`months ago and I were here trying to argue that TAK or
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`Knox should have been in our contentions or we could
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`amend our case to include those in the scope of our
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`AGIS I case, I feel like Samsung would be taking a much
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`different position than it is taking now. And I don't
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`think that would have been the case. I don't think it
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`would have been properly added to the AGIS I case.
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`And the reason why -- and this goes back
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`to what's highlighted as admissions from Samsung's
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`venue briefing, what they served the Federal Circuit
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`of, what the Federal Circuit ultimately decided in its
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`mandamus was the issues in AGIS I related to Samsung
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`devices with software, and the software was primarily
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`the Google software. It wasn't where the phones were
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`made, it wasn't the manufacture of phones, which they
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`admit it was all done in Korea. It was the software
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`combined with the phone. That was the product at issue
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`in the case.
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`And then the allegations in that
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`Complaint, that Complaint was very clear in paragraph 15
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`that they were accused devices together with software
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`components. That's what was said in paragraph 15 of
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`the original AGIS I Complaint.
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`And I feel like if we were to have taken
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`that paragraph to this Court and tried to argue that,
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`accused devices with software, including Google Maps,
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`Android Device Manager, Find My Device messages,
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`Android Messenger, Hangouts, Google Plus, et cetera,
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`included this Knox or TAK, we would have expected the
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`Court would have found that that was not the case.
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` Separately and similarly in terms of
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`what's accused in this case, in AGIS II what's accused,
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`AGIS has accused devices with software, and that
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`software is this tactical type of software. So the
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`accused product in both cases are a different product.
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`It's hardware plus software being sold and they are
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`different product, even though the model name is the
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`same.
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`THE COURT: So your infringement allegation
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`here is not directed to any of Samsung's products that
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`don't have those applications on them?
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`MR. RUBINO: That's correct, Your Honor.
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`THE COURT: So you are not accusing the entire
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`universe of Galaxy devices; it's only the subset that
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`actually have these TAK and ATAK and related
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`applications on them?
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`MR. RUBINO: Yes, Your Honor, with the caveat
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`that it may be that it is all of the same device
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`numbers, but only those devices with this software. In
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`other words, the list of devices in Paragraph 16 of our
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`Complaint could be all of those devices and there may
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`be, you know, 30 of them each that have been sold with
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`TAK which were not at issue in AGIS I.
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`THE COURT: So you are not -- your Complaint
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`in AGIS II here does not seek damages based on the
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`accused devices unless they are running the
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`applications?
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`MR. RUBINO: That's right, Your Honor.
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`THE COURT: Can you show me something in your
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`Complaint from which I would understand that?
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`MR. RUBINO: Sure, Your Honor. And I can also
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`represent that we put in our contentions in this case
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`already, and those contentions do accuse the devices
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`plus the software. But in terms of the Complaint
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`itself, paragraph 16 includes -- or it specifies that
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`"Defendants manufacture, use, sell, offer for sale,
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`and/or import into the United States the Samsung
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`Tactical, TAK, ATAK, and CivTAK applications, products,
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`and solutions, which also include related servers and
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`services for supporting [them] (collectively, the
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`'Accused Products')." That's what we defined as the
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`Accused Products.
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`And then we go on to further describe the
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`devices that may include them. And then at the end of
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`Paragraph 16 -- this is all in the same paragraph --
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`"The accused products comprise any and all versions of
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`the Tactical," et cetera, including Knox and other
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`products. But we wanted to make clear that the accused
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`products in this case are the devices configured with
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`the software.
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`THE COURT: You know, I'm looking at your
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`paragraph 16, back at the beginning of it in what I
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`guess is the second sentence, and it says, "Further,
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`Defendants manufacture, et cetera, electronic devices,
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`all of which are configured and/or adapted with certain
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`map-based communication applications, products and
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`solutions, such as," and it lists those.
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` That could be read to suggest that the
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`fact that the devices are configured to accept the
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`following applications is enough, but that's not what
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`you're representing now.
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`MR. RUBINO: That is not what we're
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`representing, Your Honor, no. What we meant by
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`"configured" there was that they have the software
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`loaded or that the devices -- it may be that the
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`devices are manufactured by Samsung Korea and imported
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`into the U.S. and the subsidiary puts this software on
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`it. But at the end of the day, the product we're going
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`to allege infringes in this case to a jury will the
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`Samsung device running one or more of these software
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`applications, and not just the Galaxy S10.
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`THE COURT: Now, you're AGIS I allegations
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`were aimed at all of the Galaxy devices that had -- at
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`least that had certain software on them. That software
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`is also on the devices accused in this case, isn't it?
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`MR. RUBINO: That is unclear, Your Honor. For
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`example, we don't have any evidence in the record that
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`the Google Mobile Services, the Google Play Protect
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`suite that is marketed to consumers, is on all of the
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`Samsung Tactical devices. It may be on some. We are
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`not certain if it is on some, or on any or all. And I
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`don't think Samsung has made any kind of representation
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`about that whatsoever.
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`THE COURT: Do you have any jurisprudence
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`that you think speaks to the issue of devices versus
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`applications and whether a suit against devices with
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`certain applications is different than the same devices
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`with other applications?
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`MR. RUBINO: Your Honor, I could make some
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`analogies, to some example, but I don't have a case.
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`But I would expect the following examples to fit within
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`a helpful constraint here:
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`For example, if there was a case of
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`intervening rights and it was hardware plus software,
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`and the software had been changed, perhaps the new
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`version -- or the version of the hardware with the
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`additional software on top would be considered a new
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`product. If we had a case where we alleged
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`infringement of a version of software on a product and
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`that case were over and we were to have one, we could
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`certainly file a follow-on case and there wouldn't be
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`estoppel for the new versions of the software, Version
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`10, 11, 12.
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`You know, when Android comes out with its
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`Version 15, which may have completely different ways
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`of working, the focus would be on whether not the
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`products, the functionalities are the same, and not
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`whether the model number of the phone, which could be
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`sold in the tens of millions, was the same.
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`Additionally, for intervening rights,
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`absolute intervening rights, for example, if you have a
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`product that was sold, like a model of product that was
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`sold prior to the date, that's out. But then after the
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`date, any sales on new transactions, those are not
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`covered by absolute intervening rights. It's that same
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`general concept, which the transaction is the sale of
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`the phone with Tactical II, an entity, versus the sale
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`of a phone with a model number with Google Hangouts to
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`a consumer, civilian.
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`THE COURT: I do know that we have frequent
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`cases that are based on a version of the operating
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`system and that the physical device might be the same,
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`but a different operating system would be accused
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`separately. Hmm, interesting.
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`MR. RUBINO: Additionally, Your Honor, to the
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`extent we had versions of an operating system accused
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`in a case, and a new version came out, I've seen
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`cases -- I've seen cases particularly in the Northern
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`District of California where new versions of the
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`operating system are not deemed to be within the
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`original case. New versions of software are not within
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`the original case. There has to be a point in time
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`when there is a cutoff. And if Plaintiff wants relief
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`for those additional newer versions, a new case has to
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`be filed. Similar analogy here.
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`THE COURT: Is there something in your
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` 7
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`infringement contentions now that you can point to
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`that shows that you are not alleging that the devices
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`infringe unless they have these enumerated applications
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`loaded on them?
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`MR. RUBINO: Your Honor, what I can point to --
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`well, perhaps not point the Court to. I don't think
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`there is an exhibit anywhere. But our infringement
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`charts depict only the applications as set forth in
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`our -- that we're arguing about here, not and TAK.
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`THE COURT: Do the charts make clear that you
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`are not accusing the devices based on their capability
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`to run those applications, but rather, they're are
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`accusing them on the fact that they have the
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`applications on them?
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`MR. RUBINO: I believe so, Your Honor, because
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`the accused aspects are in software, not the hardware.
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`It is not that the device is capable of running
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`software. It's an Android device with an operating
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`system. It could run a lot of software. That is --
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`that would not fly for an allegation of infringement
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`or even inducement to have that be the basis for an
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`allegation. It's the software itself that is doing
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`most, if not all, of the claim.
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`And we've identified the aspects of the
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`software that are infringing. And if we were to come
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`back here and try to amend those contentions to say
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`Google Maps is in the case or Google Hangouts was in
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`the case, we would expect that not to be well met by
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`the defense or the Court.
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`THE COURT: All right.
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`MR. RUBINO: And just for the record, I also
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`wanted to point out that unlike in Perso nalWeb, there
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`is no final judgment here. I know Samsung has made the
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`argument it doesn't matter, but just for the record, I
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`want to point out that there is no final judgment here
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`in the first case, as there was in Perso nalWeb.
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`This isn't an issue of the K essler
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`Doctrine. And if AGIS were to win the first case in
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`California, we would expect to be able to file
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` 21
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`follow-on cases for allegations relating to new
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` 22
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`versions of the software there, as well, even against
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` 23
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`the Google Hangouts and new versions of Android, et
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`cetera.
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` And this goes back to an issue I had with
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`the first portion of the argument. The Court had asked
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`for some evidence. This is from the PAR website, for
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` 3
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`example, where it shows Samsung devices. There is at
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` 4
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`least some software interplay in the Samsung TE-20 PAR
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` 5
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`Government TE-Enabler that sits on top of ATAK, which is
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`on the right. And so that's the type of software we
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`were referring to.
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`company.
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`THE COURT: Government TE-Enabler, that's a --
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`MR. RUBINO: PAR Government is the name of the
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`THE COURT: Oh, PAR Government, I see.
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`MR. RUBINO: Yes. This is PAR's website.
`
`Right. So this also said tha
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