Case 2:17-cv-00932-JLR Document 82 Filed 05/04/18 Page 1 of 8
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`THE HONORABLE JAMES L. ROBART
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`SEATTLE DIVISION
`
` CASE NO. 2:17-cv-00932-JLR
`
`JURY TRIAL DEMANDED
`
`PLAINTIFF’S REPLY IN SUPPORT
`OF ITS MOTION TO PRECLUDE
`CONSIDERATION OF BELATED
`CLAIMS CONSTRUCTION
`POSITIONS
`
`NOTE ON MOTION CALENDAR:
`MAY 4, 2018
`
`CYWEE GROUP LTD.,
`
` Plaintiff,
`
`v.
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`HTC CORPORATION
`and
`HTC AMERICA, INC.,
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` Defendants.
`
`
`
`
`
`PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR
`
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
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`Case 2:17-cv-00932-JLR Document 82 Filed 05/04/18 Page 2 of 8
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`In an attempt to justify its belated identification of the Additional Terms,1 Defendants
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`(collectively “HTC”) argue that they can “incorporate by reference” over 14,000 pages of
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`invalidity contentions that have been asserted by four other parties in four other cases, as well
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`as any future invalidity contentions that may be served in those or any other cases. Such
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`blanket incorporation is improper, violates the local rules and Standing Order, and wholly
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`failed to provide Plaintiff CyWee Group Ltd. (“CyWee”) with adequate notice of HTC’s
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`position. HTC further attempts to justify its late identification of terms, and to minimize the
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`resulting prejudice to CyWee, by arguing that because certain remaining scheduling deadlines
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`have been extended, the Court should overlook HTC’s complete failure to timely identify the
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`Additional Terms. HTC also states that it will grant CyWee permission to supplement its
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`expert report to address HTC’s untimely contentions in light of the extended schedule. But the
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`fact that certain remaining deadlines have been extended does not excuse HTC’s complete
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`failure to timely identify the Additional Terms in the first place. CyWee respectfully requests
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`that the Court preclude the Additional Terms.
`I. FACTUAL BACKGROUND
`On January 19, 2018, HTC served its invalidity contentions. HTC’s contentions included
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`over 2,500 pages, and purported to incorporate “by reference any additional invalidity
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`contentions, identified prior art, and/or invalidity claim charts previously disclosed” or “disclosed
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`at any later date by any party to any other litigation or U.S. Patent & Trademark Office
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`proceeding … including, but not limited to, invalidity contentions from Apple Inc. (Case No.
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`4-14-cv-01853); Samsung Electronics Co. Ltd. et al (Case No. 2-17-cv-00140); LG Electronics,
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`Inc. et al (Case No. 3-17-cv-01102); Huawei Technologies, Co., Inc. (Case No. 2:17-cv-00495);
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`Motorola Mobility LLC (Case No. 1-17-cv-00780); and ZTE Corporation (Case No. 3-17-cv-
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`02130).” Dkt. No. 81-1 at 3 (emphases added). The defendants in those cases have, thus far,
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`1 “Additional Terms” refer collectively to the three terms that HTC belatedly identified as indefinite in its
`Disclosure of Preliminary Claim Construction and Evidence, as more particularly described in CyWee’s Motion to
`Preclude Consideration of Belated Claim Construction Positions (Dkt. No. 76) at 3:1-9.
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`PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 1
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`
`
`
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
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`Case 2:17-cv-00932-JLR Document 82 Filed 05/04/18 Page 3 of 8
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`
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`served over 14,000 pages of invalidity contentions. More specifically, Samsung served 4,015
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`pages, Apple served 3,126 pages, Motorola served 4,216, and Huawei served 2,948 pages.2
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`Declaration of Ari Rafilson (“Rafilson Decl.”) at ¶ 3. The defendants in the LG and ZTE cases
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`have not yet served invalidity contentions, but HTC’s sweeping incorporation purports to
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`capture those defendants’ future contentions.
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`
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`II. ARGUMENT & AUTHORITIES
`The patent rules “require parties to crystallize their theories of the case early in litigation
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`and to adhere to those theories once they have been disclosed,” O2 Micro Int'l Ltd. v. Monolithic
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`Power Sys., Inc., 467 F.3d 1355, 1366 n. 12 (Fed. Cir. 2006). The rules are intended “to further
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`the goal of full and timely discovery and provide all parties with adequate notice and
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`information with which to litigate their cases.” Fresenius Medical Care Holdings, Inc. v. Baxter
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`Intern., Inc., 2006 WL 1329997 at *4 (N.D. Cal. 2006) (citations omitted). Any invalidity
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`theories not disclosed in invalidity contentions are barred from presentation at trial. Avago
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`Techs. Gen. IP PTE Ltd. v. Elan Microelectronics Corp., 2007 WL 2103896 (N.D. Cal. Jul. 20,
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`2007); aff’d 2007 WL 2433386, at *1 (N.D. Cal. Aug. 22, 2007).
`A. HTC’s Purported Incorporation by Reference Fails to Provide Adequate Notice.
`Because of the sheer volume of materials HTC attempts to incorporate by reference, HTC
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`fails to provide CyWee with adequate notice of its invalidity contentions. See e.g., NobelBiz, Inc.
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`v. LiveVox, Inc., 2015 WL 225223, at *8 n.5 (N.D. Cal. Jan. 16, 2015) (“Defendants’ cursory
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`incorporation by reference of invalidity contentions from litigation in the Eastern District of
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`Texas likewise does not meet the standard required for invalidity contentions under the Patent
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`Local Rules.”); Nautilus Neurosciences, Inc. v. Wockhardt USA LLC, 2013 WL 7901901, at 4
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`(D.N.J. Jan. 23, 2013) (“The indirect nature of Defendants’ incorporation-by-reference theory
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`2 “Samsung” refers collectively to Samsung Electronics Co. Ltd and Samsung Electronics America, Inc. “Apple”
`refers to Apple Inc. “Motorola” refers to Motorola Mobility LLC. “Huawei” refers collectively to Huawei Device
`Co. Ltd., Huawei Device (Dongguan) Co. Ltd., and Huawei Device USA, Inc.
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`PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 2
`
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
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`Case 2:17-cv-00932-JLR Document 82 Filed 05/04/18 Page 4 of 8
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`does not amount to a form of notice that adequately crystallizes the theories of the case.”)
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`(internal quotations and citations omitted).
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`In the context of patent litigation, claim construction, and validity determinations, the
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`Federal Circuit has consistently held that “[t]o incorporate material by reference, the host
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`document must identify with detailed particularity what specific material it incorporates and
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`clearly indicate where that material is found in the various documents. Zenon Envtl., Inc. v. U.S.
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`Filter Corp., 506 F.3d 1370, 1378 (Fed. Cir. 2007) (applying incorporation by reference in
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`context of continuity of disclosure for priority determination) (emphasis in original, internal
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`quotes omitted); see also Cook Biotech Inc. v. Acell, Inc., 460 F.3d 1365, 1376 (Fed. Cir. 2006)
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`(applying incorporation by reference in context of claim construction); Advanced Display Sys.,
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`Inc. v. Kent State Univ., 212 F.3d 1272, 1283 (Fed. Cir. 2000) (applying incorporation by
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`reference in context of invalidity by anticipation determination). Accordingly, as noted above,
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`district courts have often held that broad and generalized incorporation by reference in
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`invalidity contentions is improper, with at least one court explicitly applying the Federal
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`Circuit’s incorporation by reference framework. See Merck Sharp & Dohme Corp. v. Sandoz, Inc.,
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`2014 WL 997532 at *6 (D.N.J. Jan 6, 2014) (citing Zenon, 506 F.3d at 1378).
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`Here, HTC’s invalidity contentions do not identify with particularity what specific material
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`HTC attempted to incorporate. Rather, HTC generally incorporated “any additional invalidity
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`contentions, identified prior art, and/or invalidity claim charts” disclosed, whether previously
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`or later, by any party to any other litigation or U.S Patent & Trademark Office proceeding and
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`only obliquely referred to “Samsung Electronics Co. Ltd. et al.” See Dkt. No. 81-1 at 3:13-20.
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`Considering that Samsung’s invalidity contentions exceed 4,000 pages (and that CyWee has
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`received more than 16,000 pages of invalidity contentions to date for the patents-in-suit),3
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`HTC’s assertion that the Additional Terms “had been identified as indefinite in HTC’s
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`Preliminary Invalidity Contentions” is disingenuous. Dkt. No. 80 at 3:7-8 (emphasis added).
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`3 Rafilson Decl. at ¶ 3.
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`PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 3
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`
`
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

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`Case 2:17-cv-00932-JLR Document 82 Filed 05/04/18 Page 5 of 8
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`Such a broad and generalized reference to more than 14,000 pages of materials in no way
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`“identifies” any terms as indefinite but rather forces CyWee to guess which terms and
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`invalidity arguments HTC “specifically” intended to disclose and rely upon. To make matters
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`worse, HTC purported to incorporate infringement contentions from other cases that have not
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`even been served yet. Rafilson Decl. at ¶ 3. This is improper and contravenes the purpose and
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`spirit of the Local Patent Rules.
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`HTC’s argument is summed up as follows: CyWee and the Court should not focus solely
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`on the 2,536 pages of invalidity contentions that HTC actually served in this case, but rather
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`should assume that the more than 14,000 pages (so far) that have been served by four different
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`parties in four other lawsuits are also fair game for HTC to rely upon (not to mention the fact
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`that HTC’s argument requires CyWee to speculate as to contentions in other cases that have
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`not even been served yet). This kind of blanket incorporation is fundamentally unfair, has no
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`basis in the rules, and cannot possibly put CyWee on notice of HTC’s position, especially since
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`HTC does not specify particular terms, references, or portions of the other parties’ invalidity
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`contentions that it is relying on in this case. Consequently, HTC’s approach neither crystallizes
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`nor adheres to the theories it actually disclosed in its invalidity contentions.
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`Further, HTC’s contentions constitute 2,536 pages. Given the length of HTC’s contentions,
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`CyWee should reasonably be able to expect that HTC explicitly selected and identified terms it
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`alleges are indefinite, and prior art it relies upon, in those contentions.
`B. HTC’s Cited Caselaw is Distinguishable.
`The cases HTC cites in support of its incorporation by reference are inapposite because
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`they deal with amending invalidity contentions and/or incorporation by reference of discrete
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`and specific materials within the same case. See e.g., PersonalWeb Techs. LLC v. Int’l Bus. Machs.
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`Corp., No. 16-cv-01266-EJD (NC), slip op. (N.D. Cal. Jan. 19, 2017); Adaptix, Inc. v. Apple Inc.,
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`No. 5:13-cv-01776-PSG, slip op. at 4-5 (N.D. Cal. Aug. 8, 2014). Unlike the defendant in
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`PersonalWeb Techs, HTC has not attempted to amend its invalidity contentions. To the
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`PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 4
`
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`
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

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`Case 2:17-cv-00932-JLR Document 82 Filed 05/04/18 Page 6 of 8
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`contrary, HTC argues it does not need to amend because it previously identified the Additional
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`Terms as indefinite through its sweeping incorporation by reference of other parties’
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`contentions in other lawsuits. Similarly, HTC’s wholesale incorporation of any and all
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`invalidity contentions “previously disclosed” or “disclosed at any later date by any party to any
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`other [proceeding]” is completely different from incorporating specific infringement
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`contentions served in the same case. See Adaptix, Inc. v. Apple Inc., No. 5:13-cv-01776-PSG, slip
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`op. at 4-5 (N.D. Cal. Aug. 8, 2014) (“[Plaintiff’s expert] also incorporates by reference the
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`entirety of [plaintiff’s] infringement contentions as follows: ‘my opinions (and this report)
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`incorporate by reference all Infringement Contentions previously served.’ . . . [T]he court finds
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`nothing inherently wrong with this approach.”)
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`HTC’s assertion that CyWee cannot argue against incorporation by reference because
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`CyWee incorporated Dr. Gans’ declaration in this case also misses the point. Like the Federal
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`Circuit and district court cases cited above, CyWee maintains that incorporation by reference
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`is appropriate where the incorporation identifies with detailed particularity the matter
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`incorporated. As in Adaptix, Inc., the incorporation of a brief expert declaration that was filed in
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`this case unquestionably satisfies that standard. HTC’s incorporation of over 14,000 pages of
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`documents from different defendants in different cases (and an unknown number of pages that
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`will be served by other defendants in the future) simply does not.
`C. Amendments to the Scheduling Order Do Not Excuse HTC’s Failure to Comply.
`HTC attempts to excuse its late identification of allegedly indefinite terms on the ground
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`that the schedule has been amended, so any prejudice to CyWee has been mitigated. But even
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`if the amended schedule reduces the prejudice to CyWee (which CyWee explicitly denies), this
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`does not excuse HTC’s failure to comply with the local rules and Standing Order. Taken to its
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`logical conclusion, HTC’s argument would permit it to cherry pick invalidity arguments from
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`more than 14,000 pages of contentions without specifically identifying such arguments, and
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`then ambush CyWee with them whenever it is convenient for HTC. Put another way, HTC is
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`PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 5
`
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`
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

`

`Case 2:17-cv-00932-JLR Document 82 Filed 05/04/18 Page 7 of 8
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`asking this Court to allow it to circumvent the local rules and Standing Order so long as any
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`prejudice can be minimized by delaying the proceedings. HTC’s position disregards that the
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`local rules are intended not only to avoid prejudice, but to ensure the orderly and efficient
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`administration of cases. HTC’s conduct and arguments defy both purposes.
`D. The Standing Order Does Not Excuse HTC’s Untimely Identification of Terms.
`HTC’s willingness to ignore the local rules and Standing Order is further demonstrated by
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`its argument that, because the Standing Order states that new theories of invalidity will not be
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`considered after the Prehearing Statement absent good cause, parties are free to add new
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`theories prior to the Prehearing Statement, notwithstanding the explicit requirement that a
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`party’s invalidity contentions include a statement of “any grounds for invalidity based on
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`indefiniteness, enablement, or written description under 35 U.S.C. § 112.” Standing Order at 2-
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`3. Under HTC’s theory, the Standing Order’s requirements for invalidity contentions would be
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`meaningless—only the Prehearing Statement would matter. HTC’s position is not consistent
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`with the explicit terms of the Standing Order.
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`III. CONCLUSION
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`HTC’s incorporation by reference theory challenges credulity and, if countenanced, would
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`leave CyWee facing a shifting sea of invalidity defenses as HTC is permitted to choose
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`defenses at its whim from more than 14,000 pages of invalidity contentions in numerous other
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`lawsuits. Furthermore, amendments to the Scheduling Order do not excuse HTC’s failure to
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`abide by the Standing Order’s requirement to timely disclose all of its assertions of
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`indefiniteness. HTC’s antics prevented CyWee from presenting expert opinions on such
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`assertions when expert reports were due. To avoid further prejudice to CyWee, this Court
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`should preclude HTC’s belated allegations of indefiniteness and its vague incorporation of
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`unspecified invalidity contentions from other cases. Unless HTC is limited to terms it explicitly
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`identified in its invalidity contentions in this case, it will be able to continually change its
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`invalidity theories and unfairly prejudice CyWee.
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`PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 6
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`
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

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`Case 2:17-cv-00932-JLR Document 82 Filed 05/04/18 Page 8 of 8
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`Dated this 4th day of May, 2018.
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`Respectfully submitted,
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`
`
`
`
`/s/Carmen E. Bremer
`Carmen E. Bremer, WSBA 47,565
`carmen.bremer@bremerlawgroup.com
`BREMER LAW GROUP PLLC
`1700 Seventh Avenue, Suite 2100
`Seattle, WA 98101
`T: (206) 357-8442
`F: (206) 858-9730
`
`Michael W. Shore* (mshore@shorechan.com)
`Alfonso G. Chan* (achan@shorechan.com)
`Christopher Evans* (cevans@shorechan.com)
`Ari B. Rafilson* (arafilson@shorechan.com)
`William D. Ellerman (wellerman@shorechan.com)
`Paul T. Beeler* (pbeeler@shorechan.com)
`SHORE CHAN DEPUMPO LLP
`901 Main Street, Suite 3300
`Dallas, Texas 75202
`T: (214) 593-9110
`F: (214) 593-9111
`
` *
`
` Admitted pro hac vice
`
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`Attorneys for Plaintiff CyWee Group Ltd.
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`CERTIFICATE OF SERVICE
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`
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`I hereby certify that on May 4, 2018, I presented this Reply to the Clerk of the Court for
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`filing and uploading to the CM/ECF system, which will send notification of such filing to all
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`counsel of record.
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`Dated: May 4, 2018
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`
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`
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`/s/ Carmen E. Bremer
`Carmen E. Bremer
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`
`
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`PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 7
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
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