Case 2:23-cv-00083-RWS-RSP Document 48 Filed 12/13/23 Page 1 of 8 PageID #: 314
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:23-cv-00083-RWS-RSP
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`JURY TRIAL DEMANDED
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`SLYDE ANALYTICS LLC,
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`Plaintiff,
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`v.
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`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTORNICS AMERICA,
`INC.,
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`Defendants.
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`PLAINTIFF SLYDE ANALYTICS LLC’S SUR-REPLY IN RESPONSE
`TO DEFENDANTS SAMSUNG ELECTRONICS CO., LTD.’S AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S REPLY IN SUPPORT OF THE
`MOTION TO STAY PENDING INTER PARTES REVIEWS (DKT. 42)
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`Case 2:23-cv-00083-RWS-RSP Document 48 Filed 12/13/23 Page 2 of 8 PageID #: 315
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`I.
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`INTRODUCTION
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`Slyde Analytics LLC (“Slyde” or “Plaintiff”) files this sur-reply in response to Defendants
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`Samsung Electronics Co., Ltd.’s and Samsung Electronics America, Inc.’s (collectively,
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`“Samsung” or “Defendants”) Reply (Dkt. 47) in support of the Motion and in further opposition
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`of the Motion. Samsung failed to address this Court’s “universal practice” of denying motions to
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`stay pending pre-institutions of IPRs. See, e.g., Apex Beam Technologies LLC v. ZTE Corporation,
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`Case No. 2:22-cv-31-JRG-RSP (Dkt. 55). In an attempt to circumvent this Court’s practice
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`regarding stays pending IPRs, Samsung now, for the first time, frames the requested stay as “a
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`sensibly short stay” to preserve party resource in advance of the PTAB’s institutions on the IPRs.
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`Samsung ignores that this “short” stay could last until May 2024, at which point, under the current
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`DCO, the parties will be well into claims construction and document production will be nearly
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`complete. Samsung fails to mention these dates, which undercut the claim that a stay would be
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`“short”. The remainder of Samsung’s arguments regarding the simplification of issues and
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`prejudice are speculative and premature.
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`For these reasons, as well as those in the Opposition, the Motion should be denied.
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`II.
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`ARGUMENT
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`A.
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`Samsung’s Arguments Regarding the Simplification of Issues Weighs
`Against a Stay.
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`The simplification of issues factor weighs in against a stay. Samsung’s arguments to the
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`contrary are entirely speculative. As Samsung admits, the “issue” of claim construction may only
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`be arise for the ’033 Patent. Reply at 1.
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`As an initial matter, it is important to further emphasize this Court’s case law and standing
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`practice in denying motions to stay pre-institution of IPRs, especially due to their speculative
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`nature. “This Court (and many others) have made clear that an application for a stay after an IPR
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`petition has been filed but before the petition has been granted is very likely to be denied.” CyWee
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`Grp. Ltd. v. Samsung Elecs. Co., No. 217CV00140WCBRSP, 2019 WL 11023976, at *5 (E.D. Tex.
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`Feb. 14, 2019) (citing NFC Tech. LLC v. HTC Am., Inc., No. 2:13-CV-1058-WCB, 2015 WL
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`1069111, at *1 (E.D. Tex. Mar. 11, 2015) (“While the PTAB’s decision to institute inter partes
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`review ordinarily means that there is a substantial likelihood of simplification of the district court
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`litigation, that likelihood is far more speculative before the PTAB decides whether to
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`institute inter partes review.”)); see also Allure Energy, Inc. v. Nest Labs, Inc., No. 9-13-CV-102,
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`2015 WL 11110606, at *2 (E.D. Tex. Apr. 2, 2015) (finding that the argument IPRs will simplify
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`the case “fails both because there is no guarantee that IPR will cancel or amend any of the claims
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`at issue and because courts in this district refuse to entertain a per se rule that patent cases shall be
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`stayed during IPR.”); Trover Grp., Inc. v. Dedicated Micros USA, Case No. 2:13-cv-1047, 2015
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`WL 1069179, at *5–6 (E.D. Tex. Mar. 11, 2015); Freeny v. Apple Inc., Case No. 2:13-cv-361, 2014
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`WL 3611948, at *1 (E.D. Tex. July 22, 2014). This Court has expressly noted: “It would have
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`been virtually pointless for Samsung to have sought a stay before the IPR was instituted, as this
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`Court would have almost certainly denied it; the decisions of courts in this district as well as other
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`district courts make that abundantly clear.” Id. (emphasis added). Any arguments to the contrary
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`are nothing more than a perfunctory exercise for Samsung to preserve its right to renew the Motion
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`if all IPRs are instituted.
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`Regarding claim construction, it is “exclusively within the province of the court.”
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`Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996). Moreover, when claim
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`construction is an issue before the PTAB, a district court is not necessarily bound by the PTAB’s
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`claim construction. See, e.g., XMTT, Inc. v. Intel Corp., No. CV 18-1810-MFK, 2022 WL
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`2904308, at *6 (D. Del. July 22, 2022) (holding that the court was not required to adopt the PTAB’s
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`2
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`claim construction because claim construction was not addressed by the Federal Circuit on appeal,
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`and because the plaintiff maintained consistent constructions before the PTAB and the district
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`court) (citing SkyHawke Techs., LLC v. Deca Int'l Corp., 828 F.3d 1373, 1376-77 (Fed. Cir. 2016)).
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`This only further highlights the speculative nature of the Motion.
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`In support of its position that a pre-institution stay should be issued, Samsung relies upon
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`Chart Trading Dev., LLC v. Tradestation Grp., Inc., 2016 WL 1246579, at *2 (E.D. Tex. Mar. 29,
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`2016). The case in Chart Trading is readily distinguishable. There, the patents at issue were
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`challenged before the PTAB under Covered Business Method review (“CBM review”). 2016 WL
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`1246579, at *2. As noted by the court, “Section 18 of the AIA establishes the Transitional Program
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`for CBM review.” Id. (citing 157 Cong. Rec. S1360-02(2011); AIA § 18). The transitional
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`program includes a statutory stay provision, which heavily favors a district court granting the stay.
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`Id. Courts are directed to consider four factors when determining whether to grant a stay. Id.
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`These factors are similar to those courts consider when assessing a motion to stay pending inter
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`partes or ex parte review. Id. However, as noted by the court, the fourth factor, “whether a stay,
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`or the denial thereof, will reduce the burden of litigation on the parties and on the court”, has been
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`considered as “‘[having] ease[d] the movant’s task of demonstrating the need for a stay.’” Id.
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`(quoting Mkt.-Alerts Pty. Ltd. v. Bloomberg Fin. L.P., 922 F. Supp. 2d 486, 489 (D. Del. 2013)).
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`The decision in Chart Trading is distinguishable from the case here because CMB review is not
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`implicated, and there is no statutory provision allowing for a stay that lowers the movant’s burden.
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`Samsung must meet a higher standard than the movant in Chart Trading, which it has not. And,
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`while Court’s may consider the fourth CBM review factor, they are not required to do so.
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`3
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`Samsung’s arguments regarding potential claim construction issues and prosecution
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`disclaimer that may never arise are insufficient to warrant a stay. For this reason alone, the Motion
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`should be denied.
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`B.
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`Samsung Ignored Slyde’s Arguments Regarding Undue Prejudice.
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`Contrary to Samsung’s arguments in the Motion and the Reply, a stay would unduly
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`prejudice Slyde. Samsung argues that the issues of trial delay, potential for witness and evidence
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`availability, and impairment to Slyde’s ability to license the Patents-in-Suit are present in all patent
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`infringement cases and do not amount to undue prejudice. Samsung cites no case law in support
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`of this proposition. Indeed, the balance of the case law holds that these factors do create undue
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`prejudice. See Allvoice Developments US, LLC v. Microsoft Corp., No. 6:09-CV-366, 2010 WL
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`11469800, at *4 (E.D. Tex. June 4, 2010) (finding a ten-month stay would “create a substantial
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`delay that could cause prejudice by preventing Plaintiff from moving forward with its infringement
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`claims and by risking the loss of evidence as witnesses become unavailable and memories fade”);
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`Allure Energy, Inc. No. 9-13-CV-102, 2015 WL 11110606, at *1 (find that “a stay also tactically
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`disadvantages [the plaintiff], as the longer [a case] persists, the more likely it is that evidence and
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`witnesses’ memories will disappear or deteriorate.”) ; Anascape, Ltd. v. Microsoft Corp., 475 F.
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`Supp. 2d 612, 617 (E.D. Tex. 2007) (“It does seem that crucial witnesses are more likely to be
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`located if discovery is allowed to proceed now, rather than later.”).
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`Regarding the right to a speedy resolution of the litigation, “[t]he The Federal Circuit has
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`long held that [r]ecognition must be given to the strong public policy favoring expeditious
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`resolution of litigation. Smart Mobile Techs. LLC v. Apple Inc., No. 6:21-CV-00603-ADA, 2023
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`WL 5051374, at *3 (W.D. Tex. Aug. 8, 2023) (quoting Kahn v. GMC, 889 F.2d 1078, 1080 (Fed.
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`Cir. 1989) (internal quotations omitted). In fact, the purpose of establishing the PTAB was to
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`provide a forum for quick resolution of patent disputes. See id. (citing Ethicon Endo-Surgery, Inc.
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`4
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`Case 2:23-cv-00083-RWS-RSP Document 48 Filed 12/13/23 Page 6 of 8 PageID #: 319
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`v. Covidien LP, 826 F.3d 1366, 1367 (Fed. Cir. 2016)). However, even if the IPRs were all
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`instituted, the earliest final written decision would not be expected until April 2025, two months
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`after the current trial date of February 18, 2025. See Dkt. 33; see also Samsung Electronics Co.,
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`Ltd., et al. v. Slyde Analytics LLC, IPR2024-00002 (PTAB). In this way, a resolution before this
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`Court is more aligned with Slyde’s right to an expeditious resolution of the patent dispute than
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`before the PTAB. Moreover, Samsung is incorrect that a delay in the realization of monetary
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`damages does not represent an undue prejudice. See Smart Mobile Techs. LLC, No. 6:21-CV-
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`00603-ADA, 2023 WL 5051374, at *3, fn. 2 (“The Court also notes that seeking only monetary
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`relief does not mean that a stay would not prejudice a plaintiff whatsoever.”).
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`Accordingly, the case law is clear that a pre-institution stay would prejudice Slyde, and the
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`Motion should be denied.
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`C.
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`The Work in This Case Has Already Begun.
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`Samsung is incorrect that the costliest parts of litigation are not underway. Fact discovery
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`has begun, and Samsung has already provided responses to Slyde’s first set of interrogatories.
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`Moreover, Slyde has disclosed at least one expert to Samsung for source code review. And, as
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`noted in the Opposition, work on claim construction will begin before any decisions on institution
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`are made. See Dkt. 33. Therefore, the parties have already spent significant resources on this
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`litigation, which further weighs against a stay.
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`III. CONCLUSION
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`For the foregoing reasons, Plaintiff respectfully request that the Court deny Defendants’
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`motion to stay. (Dkt. 42).
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`Dated: December 13, 2023
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`Respectfully submitted,
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`/s/ Vincent J. Rubino, III
`Alfred R. Fabricant
`NY Bar No. 2219392
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`5
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`Case 2:23-cv-00083-RWS-RSP Document 48 Filed 12/13/23 Page 7 of 8 PageID #: 320
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`
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`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Ave., Suite 206 South
`Rye, NY 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
`
`John Andrew Rubino
`NY Bar No. 5020797
`Email: jarubino@rubinoip.com
`Michael Mondelli III
`NY Bar No. 5805114
`Email: mmondelli@rubinoip.com
`RUBINO IP
`51 J.F.K. Parkway
`Short Hills, NJ, 07078
`Telephone: (201) 341-9445
`Facsimile (973) 535-0921
`
`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
`
`ATTORNEYS FOR PLAINTIFF,
`SLYDE ANALYTICS LLC
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`6
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`Case 2:23-cv-00083-RWS-RSP Document 48 Filed 12/13/23 Page 8 of 8 PageID #: 321
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on December 13, 2023, all counsel of record who
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`are deemed to have consented to electronic service are being served with a copy of this document
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`via 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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