Case 2:21-cv-00186-JRG-RSP Document 106 Filed 08/08/22 Page 1 of 15 PageID #: 6500
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`JAWBONE INNOVATIONS, LLC,
`
`
`Plaintiff,
`
`v.
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`SAMSUNG ELECTRONICS CO., LTD. AND
`SAMSUNG ELECTRONICS AMERICA, INC.,
`
`
`Defendants.
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`
`
`
`
`CASE NO. 2:21-cv-00186-JRG
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`JURY TRIAL DEMANDED
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`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD.’S
`AND SAMSUNG ELECTRONICS AMERICA, INC.’S
`MOTION TO STAY PROCEEDINGS PENDING INTER PARTES REVIEW
`
`1
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`APPLE 1034
`Apple et al. v. Jawbone
`IPR2022-01147
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`Case 2:21-cv-00186-JRG-RSP Document 106 Filed 08/08/22 Page 2 of 15 PageID #: 6501
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`Table of Contents
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`I.
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`INTRODUCTION ................................................................................................................... 1
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`II. BACKGROUND ..................................................................................................................... 2
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`III.
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`LEGAL STANDARD .......................................................................................................... 5
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`IV. ARGUMENT ....................................................................................................................... 5
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`Plaintiff Will Not Suffer Any Undue Prejudice. ......................................................................... 6
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`Significant Work Remains in the Case. ...................................................................................... 7
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`IPR Proceedings Will Simplify or Eliminate Issues, Streamlining Litigation and Reducing the
`Burden on the Parties and This Court. ........................................................................................ 8
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`V. CONCLUSION ....................................................................................................................... 9
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`CERTIFICATE OF CONFERENCE ............................................................................................ 11
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`CERTIFICATE OF SERVICE ..................................................................................................... 12
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`2
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Cases
`
`AGIS Software Dev. LLC v. Google LLC,
`No. 2:19-CV-00359-JRG, 2021 WL 465424 (E.D. Tex. Feb. 9, 2021) ....................................7
`
`Aylus Networks, Inc. v. Apple Inc.,
`856 F.3d 1353 (Fed. Cir. 2017)..................................................................................................7
`
`Cellular Commc’ns Equip., LLC v. Samsung Elecs. Co., Ltd.,
`No. 6:14-cv-759, 2015 WL 11143485 (E.D. Tex. Dec. 16, 2015) ............................................6
`
`Clinton v. Jones,
`520 U.S. 681 (1997) ...................................................................................................................5
`
`Customedia Techs., LLC, v. DISH Network Corp,
`No. 2:16-cv-129-JRG, 2017 WL 3836123 (E.D. Tex. Aug. 9, 2017) .......................................5
`
`Ethicon, Inc. v. Quigg,
`849 F.2d 1422 (Fed. Cir. 1988)..................................................................................................5
`
`In re Etter,
`756 F.2d 852 (Fed. Cir. 1985)....................................................................................................8
`
`Landis v. N. Am. Co.,
`299 U.S. 248 (1936) ...................................................................................................................5
`
`MCM Portfolio LLC v. Hewlett-Packard Co.,
`812 F.3d 1284 (Fed. Cir. 2015)..................................................................................................6
`
`NFC Tech. LLC v. HTC Am., Inc.,
`No. 2:13-cv-1058-WCB, 2015 WL 1069111 (E.D. Tex. Mar. 11, 2015) ..........................5, 8, 9
`
`Norman IP Holdings, LLC v. TP-Link Techs., Co.,
`No. 6:13-cv-384-JDL, 2014 WL 5035718 (E.D. Tex. Oct. 8, 2014) .....................................7, 8
`
`Versata Software, Inc. v. Callidus Software, Inc.,
`771 F.3d 1368 (Fed. Cir. 2014)..................................................................................................7
`
`VirtualAgility Inc. v. Salesforce.com,
`759 F.3d 1307 (Fed. Cir. 2014)..............................................................................................1, 6
`
`Other Authorities
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`H.R. Rep. No. 112-98, 2011 U.S.C.C.A.N. 67 ................................................................................6
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`3
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`
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`I.
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`INTRODUCTION
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`Defendants Samsung Electronics Co., Ltd. (“SEC”) and Samsung Electronics America,
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`Inc. (“SEA”) (together, “Samsung” or “Defendants”), filed petitions for IPR challenging all the
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`asserted claims of all the Asserted Patents and respectfully move to stay the above-captioned
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`litigation until the Patent Trial and Appeal Board (“PTAB”) has concluded inter partes review
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`(“IPR”) of U.S. Patent Nos. 7,246,058 (“the ’058 patent”), 8,019,091 (“the ’091 patent”),
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`8,467,543 (“the ’543 patent”), 8,503,691 (“the ’691 patent”), 10,779,080 (“the ’080 patent”), and
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`11,122,357 (“the ’357 patent”) (together, “the Asserted Patents”)1.
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`Plaintiff Jawbone Innovations, LLC (“Jawbone” or “Plaintiff”) filed a Complaint against
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`Samsung on May 27, 2021, asserting only the ’091 patent and ’072 patent. ECF No. 1. Five months
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`later, on October 26, 2021, Jawbone filed a First Amended Complaint asserting five additional
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`patents (the ’058, ’543, ’691, ’080, and ’357 patents). ECF No. 21. Between November 19, 2021
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`and July 27, 2022, Defendants filed eight IPR petitions challenging all seven of the originally
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`asserted patents, including every claim currently asserted among the six remaining patents. See
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`Exs. 3, 5, 7, 9, and 11-14.
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`All of the factors considered by this Court favor a stay. First, a stay will not unduly
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`prejudice Plaintiff, because Plaintiff, a non-practicing entity, does not compete with Defendants
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`and can be adequately compensated through monetary damages. See, VirtualAgility Inc. v.
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`Salesforce.com, 759 F.3d 1307, 1318 (Fed. Cir. 2014). Second, the case is in its early stages, and
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`staying the case now would conserve the Court’s and the parties’ resources. Finally, the IPRs are
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`1The PTAB also instituted trial on Samsung’s IPR challenging U.S. Patent No. 8,280,072 (“the
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`’072 patent”), which Jawbone dropped from this litigation the day before IPR was instituted.
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`4
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`likely to simplify the issues in this matter. The IPR petitions cover all of the asserted claims of the
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`Asserted Patents and rely on primary prior art references and prior art combinations that were not
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`considered by the patent examiners. Moreover, Plaintiff’s statements in IPR proceedings will be
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`relevant to the issues in this case, including claim construction.
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`Given the substantive effect the IPR petitions will have on the Asserted Patents, the
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`interests of efficiency favor staying this case now. Defendants respectfully request that the Court
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`stay this matter pending final resolution of the IPRs.
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`On August 4, 2022, the parties discussed the relief sought by this motion. Counsel for
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`Plaintiff indicated that Plaintiff opposes a stay and would oppose this motion.
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`II.
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`BACKGROUND
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`This case is still in its early stages. A claim construction order has not been issued and
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`burden expert reports will not be served until September 12, 2022. ECF No. 58 at 3. On November
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`19, 2021, Samsung filed IPR2022-00213 (“the ’072 IPR”) challenging all claims of the ’072
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`patent. Ex. 3. The PTAB instituted trial on the ’072 IPR on June 8, 2022. Ex. 4. On April 26, 2022,
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`Samsung filed IPR2022-00865 (“the ’543 IPR”) challenging all claims of the ’543 patent. Ex. 5.
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`The PTAB’s institution decision for the ’543 IPR is due by December 8, 2022. See Ex. 6. On May
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`16, 2022, Samsung filed IPR2022-01021 (“the ’058 IPR”) challenging all claims of the ’058
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`patent. Ex. 7. The PTAB’s institution decision on the ’058 IPR is due by January 9, 2023. See Ex.
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`8. On June 16, 2022, Samsung filed IPR2022-01147 (“the ’091 IPR”) challenging all claims of the
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`’091 patent. Ex. 9. The PTAB’s institution decision on the ’091 IPR is due by January 9, 2023.
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`See Ex. 10. On July 27, 2022, Samsung filed IPR2022-01320 (“the ’080 IPR”) challenging all
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`claims of the ’080 patent, IPR2022-01321 (“ the ’357 IPR”) challenging all claims of the ’357
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`patent, and IPR2022-01322 and IPR2022-01323 (together, “the ’691 IPRs”) challenging all claims
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`of the ’691 patent between the two petitions (all four IPRs together “the Copycat IPRs”). Exs. 11-
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`5
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`14. Concurrently with each of the Copycat IPRs, Samsung filed a motion for joinder with the
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`substantively identical corresponding IPR petition filed by Google LLC. Exs. 15-18. The PTAB’s
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`institution decisions on three of the four Copycat IPRs will be due no later than February 6, 2022,
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`Exs. 24-26, and the fourth, which was filed concurrently but has not yet been accorded a filing
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`date, will likely be due soon after. The PTAB’s institution decision for Google’s IPR against the
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`’080 patent, to which Samsung seeks to join the ’080 IPR, is due by December 9, 2022. Ex. 19.
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`The PTAB’s institution decisions for the Google’s IPRs against the ’357 and ’691 patents, to which
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`Samsung seeks to join the ’357 and ’691 IPRs, respectively, are due by January 6, 2023. Exs. 20-
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`22. The table below summarizes the expected Final Written Decision dates in each of these IPRs,
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`assuming a final written decision 18 months after the notice of accord of filing date in each IPR,
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`that each of Samsung’s IPRs is instituted, and that the Copycat IPRs are joined to the
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`corresponding Google IPRs.
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`
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`Latest Possible Institution Date
`June 8, 2022 (instituted)
`December 8, 2022
`January 9, 2023
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`Latest Possible Final Written Decision
`June 8, 2023
`December 8, 2023
`January 9, 2024
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`Patent
`8,280,072
`8,467,543
`7,246,058
`8,019,091
`10,779,080
`8,503,691
`11,122,357
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`The IPR petitions challenge the validity of all of the asserted claims of the Asserted Patents,
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`February 6, 202323
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`December 11, 20234
`January 8, 20245
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`and as detailed below, all of the IPRs filed by Samsung present entirely new combinations not
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`considered by the examiner during prosecution. Specifically, none of the references presented in
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`the grounds of the ’072, ’058, ’091, ’080, ’357, or ’691 IPRs were before the examiner during
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`prosecution of the corresponding patents. Although some of the references in the ’543 IPR were
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`before the examiner during prosecution of the ’543 patent, those references appeared only late into
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`prosecution, were not substantively discussed by the examiner, and/or have been presented in a
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`new light in the ’543 IPR. Ex. 5 at 75-76; Ex. 23 at 22. Importantly, three of the references in the
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`’543 IPR were not before the examiner, and none of the specific combinations presented in the
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`’543 IPR were considered by the examiner. Thus, seven of the eight IPRs filed by Samsung present
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`2 Institution decision for the Google ’080 IPR is due by December 9, 2022. Institution decisions
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`for the Google ’357 and ’691 IPRs are due by January 6, 2023.
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`3 The ’080, and ’357 IPRs, and IPR2022-01322 against the ’691 patent were accorded a filing
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`date on August 5, 2022. Exs. 24-26. Samsung’s IPR2022-01323, which was filed concurrently,
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`will likely be accorded a filing date soon after.
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`4 Assuming joinder to the corresponding Google IPR.
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`5 Assuming joinder to the corresponding Google IPRs.
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`entirely new invalidity grounds, and the ’543 IPR presents combinations not considered by the
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`examiner.
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`III.
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`LEGAL STANDARD
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`This Court possesses the inherent power to control its own docket, including the power to
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`stay proceedings. Customedia Techs., LLC, v. DISH Network Corp, No. 2:16-cv-129-JRG, 2017
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`WL 3836123, at *1 (E.D. Tex. Aug. 9, 2017) (citing Clinton v. Jones, 520 U.S. 681, 706 (1997);
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`Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1426–27 (Fed. Cir. 1988)). In determining how to manage
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`its docket, the district court “must weigh competing interests and maintain an even balance.”
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`Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936).
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`When deciding whether to stay a case pending IPR, district courts consider “(1) whether
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`the stay will unduly prejudice the nonmoving party, (2) whether the proceedings before the court
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`have reached an advanced stage, including whether discovery is complete and a trial date has been
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`set, and (3) whether the stay will likely result in simplifying the case before the court.” NFC Tech.
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`LLC v. HTC Am., Inc., No. 2:13-cv-1058-WCB, 2015 WL 1069111, at *2 (E.D. Tex. Mar. 11,
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`2015). “Based on those factors, courts determine whether the benefits of a stay outweigh the
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`inherent costs of postponing resolution of the litigation.” Id. Here, as discussed in detail below,
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`each of these factors weighs in favor of granting a stay.
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`IV.
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`ARGUMENT
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`All of the pertinent factors weigh in favor of granting a stay pending the results of the IPRs
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`because a stay will not cause any undue prejudice, will conserve this Court’s and the parties’
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`resources, and will simplify this litigation.
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`Plaintiff Will Not Suffer Any Undue Prejudice.
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`Plaintiff will not suffer any undue prejudice if the Court stays this case pending resolution
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`of the IPRs. “[W]hether the patentee will be unduly prejudiced by a stay in the district court
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`proceedings . . . focuses on the patentee’s need for an expeditious resolution of its claim.”
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`VirtualAgility, 759 F.3d at 1318. Plaintiff is a non-practicing entity that does not compete with
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`Defendants or sell products that practice the Asserted Patents. Monetary relief will be sufficient to
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`compensate Plaintiff for any damages, and a “stay will not diminish the monetary damages to
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`which [Plaintiff] will be entitled if it succeeds in its infringement suit—it only delays realization
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`of those damages and delays any potential injunctive remedy.” Id. The “mere delay in collecting
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`damages does not constitute undue prejudice.” Cellular Commc’ns Equip., LLC v. Samsung Elecs.
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`Co., Ltd., No. 6:14-cv-759, 2015 WL 11143485, at *2 (E.D. Tex. Dec. 16, 2015) (internal citations
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`omitted).
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`Defendants, by contrast, would suffer undue prejudice in the absence of a stay because they
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`would continue to incur the expense and burden of defending against infringement allegations
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`based on patent claims that the PTAB may invalidate. This is particularly true because Samsung
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`has filed the IPR petitions promptly, filing the ’072 IPR within six months of Jawbone’s original
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`Complaint, the ’091 IPR within the statutory deadline, and the ’543, ’058, and Copycat IPRs within
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`six, seven, and nine months, respectively, of Jawbone’s First Amended Complaint where those
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`patents were first asserted. The deadline to substantially complete document production is still a
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`month away. ECF No. 58. Similarly, a claim construction order has not issued, with the trial not
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`scheduled until February 2023. Id.
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`Indeed, a stay will benefit both parties by allowing them to take advantage of the IPR
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`system, which constitutes “a more efficient and streamlined patent system that will improve patent
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`quality and limit unnecessary and counterproductive litigation costs.” MCM Portfolio LLC v.
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`Hewlett-Packard Co., 812 F.3d 1284, 1290-91 (Fed. Cir. 2015) (quoting H.R. Rep. No. 112-98,
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`2011 U.S.C.C.A.N. 67, 69, at 39-40). Accordingly, this factor favors granting Defendants’ motion
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`to stay.
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`Significant Work Remains in the Case.
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`While some work has been completed in this case, “there remains a significant amount of
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`work ahead for the parties and the court,” which also weighs in favor of a stay. Norman IP
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`Holdings, LLC v. TP-Link Techs., Co., No. 6:13-cv-384-JDL, 2014 WL 5035718, at *3 (E.D. Tex.
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`Oct. 8, 2014). The Markman hearing was conducted less than a week ago, and no claim
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`construction order has issued. Significant work remains to be done in fact discovery, including at
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`least 28 more depositions (at least nine depositions of Samsung witnesses, at least seven
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`depositions of Jawbone witnesses, and at least twelve depositions of third party witnesses).
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`Further, no expert reports have been submitted outside of the context of claim construction,. See,
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`e.g., AGIS Software Dev. LLC v. Google LLC, No. 2:19-CV-00359-JRG, 2021 WL 465424, at *3
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`(E.D. Tex. Feb. 9, 2021) (granting stay because even “late in the progression of [the] case—with
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`discovery complete, pretrial briefing submitted, and jury selection pending—there remain
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`significant resources yet to be expended by the parties”).
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`A stay would conserve judicial resources, including by avoiding any need to revisit claim
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`construction or other orders in view of arguments advanced before the PTAB. See Aylus Networks,
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`Inc. v. Apple Inc., 856 F.3d 1353, 1364 (Fed. Cir. 2017) (“[S]tatements made by a patent owner
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`during an IPR proceeding, whether before or after an institution decision, can be relied upon to
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`support a finding of prosecution disclaimer.”). In addition, a stay would allow the parties to avoid
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`incurring significant expense if the litigation continues. See, e.g., Versata Software, Inc. v. Callidus
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`Software, Inc., 771 F.3d 1368, 1374 (Fed. Cir. 2014) (finding that the court should be “mindful of
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`the burden on the parties and the court in completing both fact and expert discovery, resolving
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`summary judgment motions, completing the Markman process, and preparing for trial” and further
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`finding that such circumstances weighed strongly in favor of a stay) (opinion vacated because the
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`parties settled the case the day before the opinion issued).
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`The significant amount of work remaining in this case favors granting Defendants’ motion
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`to stay.
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`IPR Proceedings Will Simplify or Eliminate Issues, Streamlining Litigation and Reducing
`the Burden on the Parties and This Court.
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`“[T]he most important factor bearing on whether to grant a stay in this case is the prospect
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`that the inter partes review proceeding will result in simplification of the issues before the Court.”
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`NFC Tech., 2015 WL 1069111, at *4. The pending IPR petitions here concern each asserted claim
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`of the Asserted Patents. Thus, the pending IPRs will simplify the issues in this case and potentially
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`resolve them altogether.
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`Moreover, “[a] stay is particularly justified when the outcome of a PTO proceeding is likely
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`to assist the court in determining patent validity or eliminate the need to try infringement issues.”
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`Id. at *2 (quotations omitted). As the Federal Circuit and this Court have observed, “an auxiliary
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`function [of the proceeding] is to free the court from any need to consider prior art without the
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`benefit of the [PTAB]’s consideration.” Norman IP Holdings, LLC, 2014 WL 5035718, at *2
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`(quoting In re Etter, 756 F.2d 852, 857 (Fed. Cir. 1985)).
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`According to the USPTO’s trial statistics for the third quarter of 2022 (the most recent
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`available statistics), the PTAB has instituted 66% of trial petitions in 2022 to date, including
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`instituting 66% of petitions in the Electrical/Computer technology area (the relevant technology
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`area of the Asserted Patents). See Ex. 3 at 8–9. Instituted IPRs generally lead to claim
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`cancellation—82% of Final Written Decisions have resulted in at least one claim being found
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`11
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`invalid, and 66% of Final Written Decisions have found all instituted claims invalid. Id. at 11.
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`Therefore, it is highly likely that the IPRs will affect this case significantly. Accordingly, this
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`factor weighs in favor of granting Defendants’ motion to stay.
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`If the PTAB invalidates the asserted claims, then a stay will have saved significant time
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`and resources for the Court and the parties. If only some of the claims are invalidated, then IPR
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`will have narrowed the issues and will also add prosecution history that may inform the proper
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`construction of claim terms, as well as the issues of infringement and invalidity. See NFC Tech.,
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`2015 WL 1069111, at *7 (“[A]ny disposition by the PTAB is likely to simplify the proceedings
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`before this Court.”).
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`V.
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`CONCLUSION
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`Defendants submits that the balance of factors favors staying these proceedings, and
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`respectfully requests that the Court grant its motion to stay this case pending final resolution of the
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`IPRs filed by Defendants.
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`
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`DATE: August 8, 2022
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`Respectfully submitted,
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`/s/ Jin-Suk Park
`Jin-Suk Park
`jin.park@arnoldporter.com
`Ali R. Sharifahmadian
`ali.sharifahmadian@arnoldporter.com
`Paul Margulies
`paul.margulies@arnoldporter.com
`ARNOLD & PORTER KAYE SCHOLER LLP
`601 Massachusetts Ave., NW
`Washington, DC 20001-3743
`Telephone: (202) 942-5000
`Facsimile: (202) 942-5555
`
`Ryan M. Nishimoto
`ryan.nishimoto@arnoldporter.com
`Daniel S. Shimell
`daniel.shimell@arnoldporter.com
`ARNOLD & PORTER KAYE SCHOLER LLP
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`Case 2:21-cv-00186-JRG-RSP Document 106 Filed 08/08/22 Page 13 of 15 PageID #: 6512
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`777 South Figueroa Street, 44th Floor
`Los Angeles, CA 90017
`Telephone: (213) 243-4000
`Facsimile: (213) 243-4199
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`-and-
`
`Melissa Smith
`melissa@gillamsmithlaw.com
`GILLAM & SMITH LLP
`303 South Washington Avenue
`Marshall, TX 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`
`
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`Attorneys for Samsung Electronics Co., Ltd. and
`Samsung Electronics America, Inc.
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`Case 2:21-cv-00186-JRG-RSP Document 106 Filed 08/08/22 Page 14 of 15 PageID #: 6513
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`CERTIFICATE OF CONFERENCE
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`Pursuant to Local Rules CV-7(h) and (i), lead and local counsel for Samsung met and
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`conferred with lead and local counsel for Jawbone on August 4, 2022. Counsel for Jawbone
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`indicated that Jawbone opposes a stay and would oppose this motion. As such, this issue has come
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`to an impasse requiring the Court’s intervention.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`Case 2:21-cv-00186-JRG-RSP Document 106 Filed 08/08/22 Page 15 of 15 PageID #: 6514
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`CERTIFICATE OF SERVICE
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`I hereby certify that on August 8 2022, I electronically filed the foregoing Defendants’
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`Samsung Electronics Co., Ltd. and Samsung Electronics America Inc.’s Motion to Stay
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`Proceedings Pending Inter Partes Review, with the Clerk of the Court for the Eastern District of
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`Texas using the ECF System which will send notification to the registered participants of the ECF
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`System as listed on the Court’s Notice of Electronic Filing. A true and correct copy of the foregoing
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`document was also served by electronic mail on all counsel of record.
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`/s/ Melissa R. Smith
`Melissa Smith
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`15
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