`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT TEXAS
`MARSHALL DIVISION
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`v.
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`
`
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA, INC.,
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`
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`Defendants.
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`
`
`
`
` Civil Action No. 2:22-cv-00263-JRG-RSP
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` JURY TRIAL DEMANDED
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`REPLY TO AGIS’S RESPONSE TO DEFENDANTS’ OBJECTIONS TO THE
`MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
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`Case 2:22-cv-00263-JRG-RSP Document 62 Filed 05/15/23 Page 2 of 4 PageID #: 1811
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`
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`AGIS’s response (D.I. 60) mischaracterizes Samsung’s Objections to the Magistrate
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`Judge’s Report and Recommendation (D.I. 55). Products
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`having apps pre-loaded on them when sold to the
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`consumer that were accused in AGIS I should be dismissed
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`from this case due to claim splitting. D.I. 55 at 6. These
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`products (illustrated in the blue circle) were indisputably
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`at issue in AGIS I, and cannot be relitigated here.
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`Rather than address this issue, AGIS quibbles about the difference between “pre-loaded”
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`and “loaded,” and mischaracterizes Samsung’s objections as a purported “attempt to limit
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`discovery” to only “devices shipped by Samsung pre-loaded with the accused applications and
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`services.” D.I. 60 at 3. Samsung’s Objections, however, were clear that by “pre-loaded,” Samsung
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`meant having apps loaded “when sold to consumers,” not when shipped by Samsung. See D.I. 55
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`at 1, 2, 6. Samsung’s use of “pre-loaded” therefore includes loading by either Samsung or a third
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`party before sale to consumers.1 However, whether the TAK or Knox apps accused here are loaded
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`by Samsung or a third-party is irrelevant. The relevant inquiry is whether the accused products in
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`this case when sold to consumers have any of the AGIS I apps already loaded on them. If so, these
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`overlapping products (as shown at the intersection in the Venn diagram above) were already
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`accused in AGIS I, and must be dismissed from this case. See D.I. 55 at 8 (requesting dismissal of
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`“Counts III and IV of AGIS’s Amended Complaint as to all products with at least one of the Find
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`My Device, Google Maps and Find My Mobile apps accused in AGIS I pre-loaded when sold to
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`customers.”). Because AGIS does not address this issue, Samsung’s objections remain unrebutted.
`
`
`1 To the extent AGIS is now trying to argue that Samsung could somehow be liable for products
`that do not have the accused apps loaded on them when sold to consumers, that is directly contrary
`to representations made by AGIS at the hearing. See Hearing Tr., D.I. 55-1, at 43:4-23, 45:3-16,
`48:16-49:4; see also id. at 54:24-55:9.
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`
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`Case 2:22-cv-00263-JRG-RSP Document 62 Filed 05/15/23 Page 3 of 4 PageID #: 1812
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`
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`Dated: May 15, 2023
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`
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`Respectfully submitted,
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`
`
`
`
`
`
`
`
`/s/ Melissa R. Smith
`
` 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
`
` 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
`
`
`Counsel for Defendants Samsung
`Electronics Co., Ltd. and Samsung
`Electronics America, Inc.
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`
`
`
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`
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`Case 2:22-cv-00263-JRG-RSP Document 62 Filed 05/15/23 Page 4 of 4 PageID #: 1813
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record who are deemed to have consented to electronic
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`service are being served May 15, 2023, with a copy of this document via the Court’s CM/ECF
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`system.
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`/s/ Melissa R. Smith
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