Case 2:22-cv-00263-JRG-RSP Document 90 Filed 07/25/23 Page 1 of 18 PageID #: 6353
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Plaintiff,
`
`v.
`
`CIVIL ACTION NO. 2:22-cv-263-JRG-RSP
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
`
`JURY TRIAL DEMANDED
`
`Defendants.
`
`
`
`SAMSUNG’S RESPONSE TO PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S
`OPPOSED MOTION FOR LEAVE TO AMEND P.R. 4-3 DISCLOSURES
`
`
`
`
`
`

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`Case 2:22-cv-00263-JRG-RSP Document 90 Filed 07/25/23 Page 2 of 18 PageID #: 6354
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`TABLE OF CONTENTS
`
`
`Page
`
`I.
`
`II.
`
`INTRODUCTION ............................................................................................................. 1
`
`BACKGROUND ............................................................................................................... 2
`
`A.
`
`B.
`
`Procedural Background .......................................................................................... 2
`
`Find My Device (“FMD”) ..................................................................................... 4
`
`III.
`
`LEGAL STANDARD ........................................................................................................ 5
`
`IV.
`
`ARGUMENT ..................................................................................................................... 5
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`AGIS Has No Justification For Its Delay In Seeking To Add FMD And A
`Corresponding Claim Construction Dispute. ......................................................... 6
`
`The Construction Of “participants” Is Not Important Or Relevant. ...................... 7
`
`Granting Leave Would Prejudice Samsung. .......................................................... 9
`
`A Continuance Would Not Cure The Prejudice Caused By AGIS’s Delay. ....... 10
`
`AGIS’s Proposal To Construe “participants” As “devices,” Not “users,”
`Contradicts Its Prior Briefing ............................................................................... 10
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`V.
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`CONCLUSION ................................................................................................................ 11
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`i
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`Case 2:22-cv-00263-JRG-RSP Document 90 Filed 07/25/23 Page 3 of 18 PageID #: 6355
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`TABLE OF AUTHORITIES
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`
`Page
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`Cases
`
`AGIS Software Development, LLC v. Huawei Device USA, Inc.,
`No. 2:17-CV-513-JRG, 2018 WL 4908169 (E.D. Tex. Oct. 10, 2018) ...............................3, 10
`
`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
`
`Packet Intelligence LLC, v. Netscout Sys., Inc.,
`No. 2:16-CV-230-JRG, 2017 WL 2531591 (E.D. Tex. Apr. 27, 2017) ....................................9
`
`Statutes
`
`28 U.S.C. § 1498(a) .........................................................................................................................2
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`
`
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`
`ii
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`

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`Case 2:22-cv-00263-JRG-RSP Document 90 Filed 07/25/23 Page 4 of 18 PageID #: 6356
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`TABLE OF EXHIBITS
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`
`B (Dkt. 82-3)
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`C (Dkt. 82-4)
`
`Ex. Number
`Document
`Plaintiff’s Exhibits Filed With Plaintiff’s Opening Brief (Dkt. 82)
`A (Dkt. 82-2)
`June 19, 2023 Email From Enrique Iturralde to Samsung Regarding
`“Group” Term Claim Construction Issue
`June 22, 2023 Email From Neil Sirota to AGIS Regarding “Group” Term
`Claim Construction Issue
`June 28, 2023 Email From Enrique Iturralde to Samsung Regarding
`“Group” Term Claim Construction Issue
`July 6, 2023 Email From Enrique Iturralde to Samsung Regarding “Group”
`Term Claim Construction Issue
`June 29, 2023 Email From Neil Sirota to AGIS Regarding “Group” Term
`Claim Construction Issue
`Defendants’ Additional Exhibits Filed With This Brief
`1
`AGIS’s December 2022 Infringement Contentions
`2
`June 16, 2023 Declaration of Michael C. Brogioli, Ph.D. Regarding Claim
`Construction
`June 16, 2023 Declaration of Tim A. Williams, Ph.D. Regarding Claim
`Construction
`Initial Determination on AGIS’s June 15, 2023 Motion to Terminate ITC
`Investigation
`AGIS Email Chain Noticing Samsung of its Intention to File the Pending
`Motion for Leave
`AGIS Email Chain Raising “Group” Claim Construction Issue
`Exhibit D1 to AGIS’s June 2022 Proposed Amended Infringement
`Contentions
`Exhibit A to AGIS’s June 2022 Proposed Amended Infringement
`Contentions
`Exhibit B to AGIS’s June 2022 Proposed Amended Infringement
`Contentions
`AGIS’s Opening Claim Construction Brief in AGIS Software Development
`LLC v. Huawei Device USA Inc., No. 2:17-CV-513-JRG, Dkt. 165
`
`D (Dkt. 82-5)
`
`E (Dkt. 82-6)
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`3
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`4
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`5
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`6
`7
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`8
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`9
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`10
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`iii
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`Case 2:22-cv-00263-JRG-RSP Document 90 Filed 07/25/23 Page 5 of 18 PageID #: 6357
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`
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`I.
`
`INTRODUCTION
`
`AGIS’s belated attempt to add a claim construction dispute over the meaning of the word
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`“participants” in the parties’ stipulated construction of the term “group”—which follows this
`
`Court’s construction from prior litigation—should be denied because the dispute is not relevant to
`
`any issue in this case. AGIS’s new proposed meaning of “participants” could only be relevant to
`
`infringement issues for Google’s Find My Device (“FMD”) application. But FMD is not accused
`
`in AGIS’s current, operative infringement contentions. Instead, over a year into this case and after
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`the relevant deadlines have passed, AGIS is trying to inject FMD as a new accused product into
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`this case, along with this new dispute over the meaning of “participants” within the established,
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`agreed construction of “group.” AGIS’s tactics do not constitute good cause.
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`Only three weeks ago and a year into this case, AGIS moved for leave to amend its
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`infringement contentions to add allegations against FMD. Dkt. 72 (hereinafter, “Contentions
`
`Motion”). But as Samsung’s opposition to that motion explains, AGIS lacks good cause to add
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`FMD to this action. Dkt. 85. AGIS has known about and has been continuously litigating
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`allegations against Google’s FMD for the past six years across dozens of cases, including two
`
`cases against Samsung. Indeed, in AGIS’s first set of cases filed in 2017, AGIS accused FMD and
`
`disputed the construction of “group,” resulting in this Court’s construction that the parties agreed
`
`to follow just a month ago. Notably, in briefing “group” as a disputed term in that earlier case,
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`AGIS expressly defined “participants” as “users . . . of mobile devices,” contradicting its proposal
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`now to construe “participants” as the “devices” themselves.
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`Despite this, AGIS deliberately omitted FMD from this case in an effort to avert a stay or
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`dismissal based on parallel litigations that AGIS filed accusing FMD. In fact, in opposing
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`Samsung’s motions to stay or dismiss this case in view of AGIS’s other parallel cases involving
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`FMD, AGIS unequivocally represented to this Court that it was not accusing FMD in this case.
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`1
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`
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`AGIS now wants to renege on its representations to this Court and its prior agreement to follow
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`this Court’s construction of “group” by adding allegations against FMD and a corresponding
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`dispute over an already agreed-to claim construction. And this comes after the parties finalized
`
`their claim construction positions and while claim construction briefing is ongoing.
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`Google’s FMD is not part of this case, nor should it be, and construction of the word
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`“participants” is therefore unnecessary and irrelevant. AGIS’s motion for leave to add a claim
`
`construction dispute over “participants” should be denied.
`
`II.
`
`BACKGROUND
`
`A.
`
`Procedural Background
`
`On July 14, 2022, AGIS filed this case asserting the ’838, ’829, ’123, and ’970 Patents
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`against Samsung devices running TAK, ATAK, and CivTAK software applications, all of which
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`are developed by the U.S. government. Dkt. 1 ¶ 16. After Samsung moved to dismiss the claims
`
`against those government applications based on 28 U.S.C. § 1498(a), Dkt. 22, AGIS filed its First
`
`Amended Complaint adding allegations against Samsung’s Knox software. Dkt. 29 ¶ 16. In
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`neither complaint did AGIS make any claims against FMD or any Google-developed software.
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`In fact, AGIS repeatedly disclaimed FMD and any other Google software from the scope
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`of this case. This case is one of many AGIS has filed, where the others include (1) a litigation
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`pending in the Northern District California (“NDCA”), where AGIS has accused Samsung and
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`Google of infringing the ’838 and ’829 Patents based on FMD (AGIS Software Development LLC
`
`v. Google LLC (“AGIS I”), No. 5:22-CV-04826-BLF); and (2) an ITC investigation that AGIS
`
`filed against Samsung, Google, and other companies in November 2022, where AGIS asserted the
`
`’970 and ’829 Patents against FMD. In opposing Samsung’s motion to stay this case pending
`
`resolution of the ITC action, AGIS unequivocally represented to this Court that this case does not
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`concern “Google applications,” including FMD:
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`2
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`

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`
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`The accused products for the instant AGIS-Samsung II case do not concern the
`Google applications. Neither the complaint nor the amended complaint refers to
`any Google applications. In fact, prior to the filing of Samsung’s Motion, AGIS’s
`discovery requests expressly stated that the accused products do not include the
`Google applications accused before the NDCA and ITC. (Dkt. 41 at 2.)
`
`AGIS similarly represented in its opposition to Samsung’s motion to dismiss that “[t]he present
`
`action alleges infringement . . . by a . . . set of non-Google applications.” Dkt. 42 at 17.
`
`AGIS’s contentions and discovery in this case are consistent with these representations. In
`
`its interrogatories, AGIS expressly defines “Accused Products” as “not includ[ing] the Google
`
`Find My Device application.” Dkt. 41-4 at 4; Dkt. 42-14 at 4. And AGIS’s current infringement
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`contentions accuse only TAK, ATAK, CivTAK, and Knox software, and make no allegations
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`against FMD. See Ex. 1 (AGIS’s December 2022 Infringement Contentions).
`
`On June 16, the parties filed their Local Patent Rule (“P.R.”) 4-3 statement, which included
`
`the parties’ final claim construction proposals. Dkt. 67. Both parties served expert declarations
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`on certain disputed terms identified in the P.R. 4-3 statement. Exs. 2, 3. The parties also filed a
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`joint motion requesting that the Court adopt their agreed constructions, which the Court granted
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`on June 21, 2023. Dkt. 68, 70. The parties’ agreed-to constructions include the term “group” as
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`meaning “more than two participants associated together.” Dkt. 68. The parties’ agreement
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`follows a prior construction issued by this Court in 2018 in another AGIS litigation where AGIS
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`accused FMD and disputed the meaning of “group.” AGIS Software Development, LLC v. Huawei
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`Device USA, Inc., No. 2:17-CV-513-JRG, 2018 WL 4908169, at *23-26 (E.D. Tex. Oct. 10, 2018).
`
`AGIS also agreed to this Court’s construction in the subsequent AGIS I matter. AGIS I, DKt. 109-
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`1 (PR 4-3 list of agreed constructions).
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`But around this time, after representing that Google software was not at issue, AGIS
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`changed course and decided it was no longer to its benefit to abide by its representations. On June
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`15, 2023, AGIS withdrew its complaint in the ITC investigation and moved to terminate the
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`3
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`
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`investigation. Ex. 4. The very next day, AGIS attempted to inject allegations against FMD into
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`this case, notwithstanding that this case had already been pending for one year and that its efforts
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`contradict its earlier representations to this Court and Samsung that this case is not about FMD.
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`Specifically, AGIS filed a Second Amended Complaint adding allegations against FMD for the
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`’838 and ’970 Patents. Dkt. 69. AGIS also notified Samsung that AGIS intended to move for
`
`leave to amend its infringement contentions to add allegations against FMD for the ’838 and ’970
`
`Patents. Ex. 5 (AGIS Email Chain Noticing Samsung of Its Motion for Leave to Add FMD
`
`Allegations). After Samsung stated that it opposed, AGIS filed its Contentions Motion, which is
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`currently being briefed. Dkt. 72.
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`Then, on June 19, AGIS requested—for the first time in this case—that the word
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`“participants” in the agreed construction of “group” be construed to include “devices.” Ex. 6
`
`(AGIS Email Chain Raising Group Claim Construction Issue).
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`B.
`
`Find My Device (“FMD”)
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`As its name (Find My Device) suggests, FMD is a single-user
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`application that allows a single user to identify the location of that
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`user’s own device(s). AGIS I, Dkt. 434 (MSJ) at 5-6 (N.D. Cal. Apr.
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`3, 2023). To use FMD, the device a user is trying to locate must be
`
`connected to the user’s Google account (e.g., via a Gmail address),
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`and the user must sign into that account. Id. If a user has multiple
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`devices, a user can sign into their Google account through any of those
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`devices and use FMD to locate each of the user’s devices, one at a
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`time. Id. For example, as depicted in the screenshot of the FMD user interface on the right, a
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`user with three phones can select an icon above the map for one of the user’s phones, and a green
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`symbol showing the location of the selected phone appears on the map. Id.
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`4
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`
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`AGIS is already accusing FMD of infringing its patents in the AGIS I action pending in the
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`NDCA. In that case, Google has moved for summary judgment, arguing that FMD cannot infringe
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`AGIS’s patents where the parties have agreed to construe “group” to mean “more than two
`
`participants associated together.” Mot. at 3-4; AGIS I, Dkt. 434 at 13. In opposition, AGIS has
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`argued that “participants” means “devices.” AGIS I, Dkt. 452 at 2. That motion is scheduled to
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`be heard on September 7, 2023.
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`III. LEGAL STANDARD
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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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`RSP, 2022 WL 16636930, at *2 (E.D. Tex. Nov. 2, 2022).
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`IV. ARGUMENT
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`AGIS’s motion for leave to add a dispute over the meaning of “participants” should be
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`denied because the dispute is irrelevant to any of AGIS’s infringement allegations against the
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`currently-accused products. The dispute could only be relevant to FMD—a product that is not
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`currently part of this case and should not be for the reasons discussed in Samsung’s opposition to
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`AGIS’s pending Contentions Motion (Dkt. 85). Thus, construction of “participants” is
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`unnecessary and irrelevant, and AGIS cannot demonstrate good cause for amending its P.R. 4-3
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`statement under the four good cause factors. Beyond the good cause factors, AGIS’s attempt to
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`construe “participants” is an improper attempt to undo this Court’s prior construction of “group,”
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`which AGIS agreed to in AGIS I and again in this litigation. AGIS’s motion should be denied.
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`5
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`Case 2:22-cv-00263-JRG-RSP Document 90 Filed 07/25/23 Page 10 of 18 PageID #: 6362
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`A.
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`AGIS Has No Justification For Its Delay In Seeking To Reconstrue “group”
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`AGIS argues that its motion is timely because it raised the dispute over “participants” three
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`days after the June 16, 2023 deadline for P.R. 4-3 statements and any delay was caused by
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`Samsung’s “attempt to drag this issue out.” Mot. at 2-3, 5.
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`AGIS’s arguments ignore that its proposal to construe “participants” is inextricably tied to
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`its untimely attempt add FMD to this case, and that AGIS has been litigating virtually the same
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`allegations against FMD since 2017, including against Samsung since 2019, as detailed in
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`Samsung’s opposition to the Contentions Motion. Dkt. 85. As part of those prior litigations, this
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`Court resolved the construction of “group” in 2018 and AGIS later agreed to that construction in
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`the AGIS I litigation, and then again in this case. Huawei, 2018 WL 4908169, at *23-26; AGIS I,
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`Dkt. 109-1. Despite knowing about FMD since at least 2017, AGIS strategically chose to omit
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`FMD from its complaints and infringement contentions to avoid a stay and dismissal of this case
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`in view of its other litigations in the ITC and NDCA asserting the same or related patents against
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`FMD. Indeed, just a few months ago, AGIS twice represented to this Court that this case does not
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`concern FMD or any Google-developed software. Dkt. 41 at 2; Dkt. 42 at 17. Then, one day after
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`withdrawing its ITC action, AGIS suddenly reversed course, filing a Second Amended Complaint
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`that adds allegations against FMD. Dkt. 69. It then filing its opposed Contentions Motion to add
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`FMD, while also proposing to backtrack on its agreement to follow this Court’s “group”
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`construction, by adding a dispute over the meaning of “participants.” Dkt. 72.
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`This chronology exposes AGIS’s gamesmanship and belies its characterization of its delay
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`in raising a dispute over the meaning of “participants” as being only the three days following the
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`parties’ June 16 filing of P.R. 4-3 statement. Rather, AGIS has delayed since initiating this lawsuit
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`a year ago, when AGIS could have included, but chose not to include, allegations against FMD.
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`6
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`Case 2:22-cv-00263-JRG-RSP Document 90 Filed 07/25/23 Page 11 of 18 PageID #: 6363
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`A year into the case and while claim construction briefing is ongoing, AGIS’s belated attempt to
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`inject FMD and the related dispute over “participants” is anything but timely.
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`Finally, AGIS’s attempt to blame Samsung for the untimeliness of this motion is without
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`merit. Specifically, AGIS’s allegation that Samsung “drag[ged]” this issue out is flatly
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`contradicted by the parties’ correspondence, which shows that after AGIS first raised its dispute
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`over “participants” on June 19, 2023, Samsung diligently and timely responded. Mot. at 5; Ex. 6
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`(Emails between counsel). That correspondence also shows that Samsung repeatedly asked AGIS
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`to explain how its proposed construction of “participants” is relevant in view of AGIS’s current
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`infringement contentions, and that AGIS repeatedly refused to answer. Ex. 6.
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`B.
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`The Construction Of “participants” Is Not Important Or Relevant.
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`AGIS provides no explanation for why the meaning of “participants” could be relevant to
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`its current, operative infringement contentions, which accuse the TAK, ATAK, CivTAK, and
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`Knox applications. Instead, AGIS speculates about a “potential O2 Micro issue” based on a “co-
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`pending case” in the NDCA where Google has moved for summary judgment on non-infringement
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`and other issues. Mot. at 3-4. But AGIS fails to mention that the dispute over “participants” in
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`the NDCA action pertains only to its allegations for FMD, which is not accused in AGIS’s current
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`contentions in this case.1 The NDCA action does not involve any of the TAK, ATAK, CivTAK,
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`or Knox software applications that are the only products currently accused in this case.
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`In the NDCA action, Google’s pending summary judgment motion explains that FMD does
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`not satisfy the construction of “group” as requiring “more than two participants” because, among
`
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`1 To the extent AGIS contends its proposal to add a claim construction dispute over “participants”
`is not tied solely to FMD and is also relevant to the other products AGIS accused in its original
`contentions served in December 2022, then there is no justification for AGIS’s delay in seeking
`leave to construe “participants” and none is provided in its motion.
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`7
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`
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`other things, FMD is a single-user application as explained in Section II.B. AGIS I, Dkt. 434
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`(MSJ) at 5, 13. As a single-user application, FMD can never be used by or associate “more than
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`two” individual users (i.e., people) to form a “group.” Id. In opposition, AGIS argues that the
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`word “participants” means “devices,” not “users.” AGIS I, Dkt. 452 (MSJ Opp.) at 2-3. That is,
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`AGIS argues that if “group” means “more than two devices associated together,” then FMD
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`practices the “group” limitations because multiple devices belonging to a single user can form a
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`“group.” Id. at 7-8. Thus, the dispute over “participants” in the NDCA relates to only to FMD.
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`Indeed, AGIS’s actions, including its current infringement contentions in this case, confirm
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`that the dispute over “participants” does not apply to any accused feature in this case. AGIS only
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`sought to inject a dispute over “participants” on June 19, three days after it proposed adding FMD
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`to its infringement contentions. Ex. 6. Before then, AGIS never raised a dispute over
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`“participants”; rather, it agreed to adopt this Court’s prior construction of “group” as “more than
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`two participants associated together” without comment. Dkt. 70.
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`Further, unlike FMD, the TAK, ATAK, CivTAK, and Knox software products accused in
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`AGIS’s current contentions are not single-user applications. Thus, AGIS’s infringement theory
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`for these applications does not change whether “participants” means “devices” or “users.” Rather,
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`for each of the TAK, ATAK, CivTAK, and Knox applications, AGIS accuses different users, each
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`having its own single mobile device, as being the purported “participants.” For example, AGIS
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`alleges that in the “joining a communication network corresponding to a group . . .” limitation of
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`the ’838 Patent, “[t]he group includes the participant users,” Ex. 7 (Infr. Cont., Ex. D1) at D1-18,
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`and that the “participating in the group . . .” limitation of the ’838 Patent is met in the accused
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`Samsung products because “after adding a user to the group, the user shares the location of the
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`user shown to one or more servers.” Id. at D1-26. AGIS likewise alleges for the ’123 and ’829
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`8
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`
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`Patents that the “participants” in a “group” are “users.” See, e.g., Ex. 8 (Infr. Cont., Ex. A) at A-
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`18 (’123 Patent) (“The group includes the users.”); Ex. 9 (Infr. Contentions, Ex. B) at B-19 (’829
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`Patent) (“The group includes the users.”). Nowhere in its current contentions does AGIS present
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`a theory based on multiple devices belonging to a single user.
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`Thus, no infringement issues for the products accused in AGIS’s contentions depend on
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`whether “participants” means “users” versus “devices.” Any such claim construction dispute is
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`only relevant to FMD. But FMD is not accused in AGIS’s current contentions, and AGIS’s
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`pending Contentions Motion proposing to add FMD should be denied for the reasons stated in
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`Samsung’s opposition. Dkt. 85.
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`C.
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`Granting Leave Would Prejudice Samsung.
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`AGIS argues that there is no prejudice because the parties have not yet briefed the disputed
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`terms and the Markman hearing is still weeks away. Mot. at 4. AGIS’s arguments again
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`completely ignore that its proposal to construe “participants” is tied to its pending, opposed
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`Contentions Motion seeking to add FMD to this case after a year of proceedings. FMD is not
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`currently part of AGIS’s contentions, so there is no reason to construe “participants.” Forcing
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`Samsung to submit claim construction briefing and argument on this issue is therefore prejudicial.
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`Construing “participants” would also be wasteful for the Court, which already construed “group”
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`when AGIS disputed its construction in 2018 as part of AGIS’s first wave of cases against FMD.
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`
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`Further, Samsung would be prejudiced if the Court grants AGIS’s Contentions Motion and
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`adds FMD to this case. Samsung developed its claim construction proposals and finalized them
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`as part of the parties’ P.R. 4-3 statement with the understanding that FMD was not part of this
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`case. During that process, and in an effort to narrow disputed terms, Samsung agreed to the
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`construction of “group” as “more than two participants associated together,” with the
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`understanding that its agreement would resolve all disputes over the meaning of “group.” See
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`9
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`Case 2:22-cv-00263-JRG-RSP Document 90 Filed 07/25/23 Page 14 of 18 PageID #: 6366
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`
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`Packet Intelligence LLC, v. Netscout Sys., Inc., No. 2:16-CV-230-JRG, 2017 WL 2531591, at *3
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`(E.D. Tex. Apr. 27, 2017) (finding an amendment proposed two days before the Markman hearing
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`to be prejudicial to the defendants because it “penalizes them for narrowing the scope of the
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`disputed terms”). Further, along with the P.R. 4-3 statement, Samsung also served an expert
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`declaration based on its understanding of what the disputed terms were. Ex. 3. Granting AGIS’s
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`untimely requests to inject FMD and a new dispute over “participants” would be prejudicial to
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`Samsung’s preparation of its claim construction positions, disclosures, and briefing.
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`D.
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`A Continuance Would Not Cure The Prejudice Caused By AGIS’s Delay.
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`In its motion, AGIS states that it opposes a continuance. Mot. at 5. Samsung agrees. A
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`continuance would not cure and would, instead, further the prejudice against Samsung by requiring
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`that the Court reopen claim construction proceedings a year into the case. Additionally, granting
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`AGIS leave to amend and ordering a continuance would reward AGIS’s gamesmanship. AGIS
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`deliberately omitted FMD from the case and repeatedly represented to Samsung and the Court that
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`FMD is not part of this case, all to avoid dismissal and stay. Now, a year later, AGIS evidently
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`believes that its prior position no longer suits its purposes, and so AGIS seeks to add FMD and the
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`related dispute over “participants.” Allowing AGIS to disrupt this case to further its improper
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`motives would plainly prejudice Samsung.
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`E.
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`AGIS’s Proposal To Construe “participants” As “devices,” Not “users,”
`Contradicts Its Prior Briefing
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`Not only is AGIS’s request to inject this dispute about the meaning of “participants”
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`unsupported by good cause, it is also contradicted by AGIS’s prior statements to this Court about
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`what “participants” means. In AGIS’s first cases asserting the same patents against FMD in this
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`Court, the parties disputed the construction of “group,” and the Court ultimately construed the term
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`as “more than two participants associated together.” See Huawei, 2018 WL 4908169. While the
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`Case 2:22-cv-00263-JRG-RSP Document 90 Filed 07/25/23 Page 15 of 18 PageID #: 6367
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`dispute in that case was over how many “participants” should be required by the construction of
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`“group,” both parties’ use of the word in their respective briefing demonstrates that they were
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`operating under a shared understanding of “participants” as meaning “users,” not devices, as AGIS
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`now argues. Indeed, in describing a related, parent patent to the asserted patents in its opening
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`claim construction brief, AGIS equated the word “participants” with “users . . . of mobile devices,”
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`explaining that the patents’ alleged invention establishes “a communication network for designated
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`users (also called “participants”) of mobile devices, such as cellular telephones/PDAs.” Ex. 10
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`at 2. Consistent with that definition, AGIS also referred to a “mobile device of one participant,”
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`not a mobile device being a participant, and relied on a portion of the ’838 Patent specification
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`that describes a group as consisting of “two or more people,” not devices. Id. at 2, 25. AGIS
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`should not be permitted a do-over of its prior position that “participants” means users/people
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`simply because it has decided that its prior position is no longer helpful.
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`V.
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`CONCLUSION
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`The parties stipulated to a construction of the claim term “group” following this Court’s
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`prior construction and AGIS has provided no basis, much less a good cause basis, to disturb that
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`construction. The meaning of “participants” within that agreed construction could be relevant only
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`to infringement issues for FMD—a product that is not, and should not be, part of AGIS’s
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`infringement contentions in this case. The Court should deny AGIS’s motion for leave to amend
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`its P.R. 4-3 statement to add a claim construction dispute over the meaning of “participants.”
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`Dated: July 25, 2023
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`Respectfully submitted,
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`By: /s/ Melissa R. Smith
`Melissa R. Smith
`Texas State Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
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`Case 2:22-cv-00263-JRG-RSP Document 90 Filed 07/25/23 Page 16 of 18 PageID #: 6368
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`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)
`
`Darin W. Snyder (pro hac vice)
`dsnyder@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
`O’MELVENY & MYERS LLP
`2501 North Harwood Street, Suite 1700
`Dallas, TX 75201-1663
`Telephone: (972) 360-1900
`Facsimile: (972) 360-1901
`
`Neil P. Sirota
`neil.sirota@bakerbotts.com
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`Case 2:22-cv-00263-JRG-RSP Document 90 Filed 07/25/23 Page 17 of 18 PageID #: 6369
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`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
`
`ATTORNEYS FOR DEFENDANTS
`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA, INC.
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`Case 2:22-cv-00263-JRG-RSP Document 90 Filed 07/25/23 Page 18 of 18 PageID #: 6370
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served on July 25, 2023, to all counsel of record who are deemed to have
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`consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`Dated: July 25, 2023
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`Melissa R. Smith
`Melissa R. Smith
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