Case 2:22-cv-00263-JRG-RSP Document 86 Filed 07/20/23 Page 1 of 6 PageID #: 5866
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:22-cv-00263-JRG
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`JURY TRIAL DEMANDED
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`§
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S REPLY IN SUPPORT
`OF ITS OPPOSED MOTION FOR LEAVE TO AMEND ITS DISCLOSURE
`OF ASSERTED CLAIMS AND INFRINGEMENT CONTENTIONS (DKT. 85)
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`Case 2:22-cv-00263-JRG-RSP Document 86 Filed 07/20/23 Page 2 of 6 PageID #: 5867
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`There is no dispute that AGIS has complied with this Court’s deadline to amend its
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`Complaint. See Dkt. 66 (stating the deadline to file amended pleadings is June 16, 2023).
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`Defendants do not dispute this fact. AGIS’s Motion for Leave to Amend its Infringement
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`Contentions is merely to comport its infringement contentions with its Amended Complaint.
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`Defendants’ claims that AGIS intentionally omitted FMD from the present case in order to avert a
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`stay or dismissal, or that this was AGIS’s “orchestrated strategy to avoid a stay or dismissal,” have
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`no evidentiary basis and are based on speculation.
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`AGIS’s bases for amending the complaint are irrelevant to this Motion. AGIS has
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`demonstrated there is good cause for AGIS’s motion for leave to amend its infringement
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`contentions. Further, AGIS has been diligent in seeking to amend its infringement contentions as
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`AGIS sought to file the instant Motion the same day as the Second Amended Complaint. Any
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`delay in filing this Motion was due to Samsung’s delay and Samsung’s unavailability to meet and
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`confer, as required by this Court’s Standing Order, regarding AGIS’s motion until the filing date
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`of the Motion.
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`Second, Defendants cannot dispute that there is no pending litigation against Samsung by
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`which FMD is accused against the ’970 and ’838 Patents. Indeed, the ’970 and ’838 Patents are
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`not asserted against Samsung in any other case. Because the ’970 and ’838 Patents are not asserted
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`against Samsung in the AGIS I litigation, AGIS could not have asserted FMD against Samsung in
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`the AGIS I litigation. In addition, the claims of the ’970 Patent were amended following
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`reexamination. Even assuming AGIS had asserted the ’970 and ’838 Patents in the AGIS I
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`litigation accusing older versions of FMD of infringement, Samsung would have moved to dismiss
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`the claims of the ’970 Patent from that litigation, much like Google LLC (which is represented by
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`the same co-counsel) has done in the NDCA litigation. To the extent prior versions of FMD are
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`Case 2:22-cv-00263-JRG-RSP Document 86 Filed 07/20/23 Page 3 of 6 PageID #: 5868
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`accused in another case, such accusations concern different patents and different Accused
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`Products. Accordingly, AGIS’s supplementation is important to this case, where not permitting
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`the supplementation would result in additional litigation to resolve AGIS’s claims against
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`Samsung for the current new versions of FMD on Samsung devices. AGIS has sought to add the
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`new versions of FMD to the instant case in an effort to streamline proceedings concerning the ’970
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`and ’838 Patents, which are not presently asserted against Samsung in any other jurisdiction.
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`Samsung’s efforts to prevent AGIS from updating its infringement contentions to address the new
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`versions of FMD accused in the Second Amended Complaint reeks of gamesmanship.
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`Third, there is no prejudice to Samsung in allowing the supplementation. AGIS has
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`comported with the Court’s deadline for amendment of its complaint and Samsung cannot show
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`otherwise. Defendants’ arguments that they would be prejudiced by having to conduct discovery
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`on FMD are without merit, particularly where Defendants’ discovery is already wholly deficient.
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`To date, Defendants have made two document productions and failed to provide fulsome responses
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`to fourteen interrogatories, despite having received AGIS’s requests in October 2022. Nearly three
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`months remain in fact discovery, leaving more than sufficient time for the parties to exchange
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`discovery regarding FMD in addition to the Accused Products. Although Samsung alleges
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`prejudice because FMD “was also developed by a different company (Google),” it does not allege
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`that obtaining this discovery from Google would be unduly burdensome. In fact, Samsung cannot
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`allege any such burden where it itself submits that infringement allegations against Google have
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`been pending, and Google has already produced this discovery in the NDCA case as well as the
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`ITC investigation. The same documents and information have already been collected and
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`produced in the co-pending litigations. In addition, less than two weeks after AGIS filed its Second
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`Amended Complaint and the day after AGIS filed the instant Motion, attorneys representing
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`Case 2:22-cv-00263-JRG-RSP Document 86 Filed 07/20/23 Page 4 of 6 PageID #: 5869
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`Google in the co-pending NDCA litigation filed their Notices of Attorney Appearance in this case.
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`See Dkts. 73-79.
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`While Defendants argue that claim construction has begun and while the parties have
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`already exchanged claim terms and constructions, Samsung does not propose any claim terms it
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`alleges require construction should the Court grant AGIS’s request to amend its infringement
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`contentions. With respect to Samsung’s allegations that AGIS’s efforts to insert the “group”
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`limitation into dispute are prejudicial, AGIS has already filed a separate motion to construe this
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`limitation prior to the entry of any claim construction briefing and is awaiting the Court’s decision
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`regarding that matter. Further, there are no “supplemental claim-construction proceedings” for
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`this term where the parties have not exchanged any claim construction briefing or submitted their
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`arguments to the Court with respect to this term. The “group” limitation can be properly addressed
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`by this Court in the Markman hearing that is already scheduled with sufficient time for parties and
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`the Court to meaningfully address any arguments.
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`Fourth, Defendants do not dispute that a continuance is not necessary where the current
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`First Amended Docket Control Order provides sufficient time for AGIS to seek the relevant
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`discovery. Defendants’ arguments that “supplemental” claim construction is required are
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`incorrect. As shown above, the parties have not entered any claim construction briefing with
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`respect to any of the disputed terms.
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`Accordingly, AGIS has demonstrated good cause for leave to amend its infringement
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`contentions and respectfully requests the Court grant its motion for leave.
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`Dated: July 20, 2023
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`Respectfully submitted,
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` /s/ Vincent J. Rubino, III
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
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`Case 2:22-cv-00263-JRG-RSP Document 86 Filed 07/20/23 Page 5 of 6 PageID #: 5870
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`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`Enrique W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@ fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Avenue
`Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
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`Samuel F. Baxter
`State Bar No. 01938000
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`State Bar No. 24012906
`Email: jtruelove@mckoolsmith.com
`MCKOOL SMITH, P.C.
`104 E. Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Facsimile: (903) 923-9099
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`ATTORNEYS FOR PLAINTIFF AGIS
`SOFTWARE DEVELOPMENT LLC
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`Case 2:22-cv-00263-JRG-RSP Document 86 Filed 07/20/23 Page 6 of 6 PageID #: 5871
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on July 20, 2023, all counsel of record who are
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`deemed to have consented to electronic service are being served with a copy of this document via
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`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Vincent J. Rubino, III
` Vincent J. Rubino, III
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