IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

HEADWATER RESEARCH LLC

Plaintiff,

v.

SAMSUNG ELECTRONICS CO., LTD and 

SAMSUNG ELECTRONICS AMERICA, INC.,

Defendants.

Case No. 2:23-CV-00103-JRG-RSP

SAMSUNG’S MOTION TO COMPEL HEADWATER TO SERVE A CORRECT 

RESPONSE TO INTERROGATORY NO. 11

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Defendants Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. 

(collectively, “Samsung”) respectfully move the Court for an order compelling Plaintiff Headwater 

Research LLC (“Headwater”) to provide a correct response to Interrogatory No. 11 (“ROG 11”). 

This dispute results from Headwater’s failure to correct its interrogatory response, which it copied 

from a different case involving different technology. Nine months ago, Headwater served RFA

responses contradicting its ROG 11 response. Three months ago, its representative (Dr. Raleigh)

testified likewise. It is beyond time for Headwater to correct its interrogatory response. 

FACTUAL BACKGROUND

A. The Complaint Claims that the ItsOn Software Practiced the Asserted Patents

Headwater’s Complaint focuses on the prior relationship between Samsung and ItsOn, a 

company also founded by Headwater founder Dr. Gregory Raleigh. See Dkt. 31. Sprint and ItsOn

had an arrangement where Sprint had Samsung include ItsOn software on certain Sprint devices, 

which arrangement ended around 2016.

In its Complaint, Headwater predicates its willfulness allegations on the theory that 

Samsung received “notice of the asserted patents” via its exposure to ItsOn software that 

implemented “Headwater-patented technology.” See id. ¶¶ 16-36, 56, 60, 64, 70, 74, 79, 85, 89, 

94. Specifically, Headwater: (i) bases its willfulness claims on the “installation of the ItsOn 

software and solutions into [Samsung’s] operating systems, source code, and kernels in 2013-

2016.” Id., ¶¶ 64, 79, 94; and (ii) claims Samsung knew of/was willfully blind to its alleged 

infringement because “the ItsOn software installed on [Samsung] phones and tablets in 2013-2016 

included a patent marking notice.” Id., ¶¶ 64, 79.

B. Headwater’s ROG 11 Response Claims that the 

Samsung’s ROG 11 seeks “the factual and legal basis and supporting evidence for”

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Headwater’s willfulness allegation. Ex. 1. In its November 27, 2023 response, Headwater made 

various willfulness allegations premised on the theory that 

 Id. For example, Headwater’s response alleges:

• “

•

•

•

•

Id. However, this response was inaccurate, as Headwater indiscriminately copied this response

from a companion case (the -422 case) involving different patents and technology. For example, 

neither “roaming control” nor “background/foreground differential data control technology” has 

anything to do with the asserted patents in this case; rather, those technologies are at issue in the -

422 case (from which Headwater’s ROG 11 response was copied). 

Five months later, on May 17, 2024, Headwater served its first and only supplemental 

response to ROG 11,

1

adding a Rule 33(d) string cite of documents—none of which show that the 

1HW’s only Rog 11 Supplemental Response says “Third Supplemental Response to [ROG] 11 

(2/9/2024).” This is an incorrect copy and paste from HW’s ROG 11 response in the -422 case. 

HW only served one supplemental response to ROG 11 in this case (-103), and it did so on May 

17, 2024. 

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 Ex. 1. 

Headwater incorporates its response to ROG 11 into at least four other interrogatory 

responses:

• No. 4, which seeks, inter alia, the legal and factual bases/details for Headwater’s 

contention there are secondary considerations that should be considered as to nonobviousness under 35 U.S.C. § 103. Headwater 

and incorporates its ROG 11

response in support. 

• No. 6, which seeks details about the measure and proper calculation of any and all 

damages and harm claimed against Samsung in this litigation.

• No. 9, which seeks information about any U.S. products that allegedly embodied any 

claim of the Asserted Patents. As part of its response, Headwater incorporates its 

response to ROG 11. 

• No. 12, which seeks the legal and factual bases/details for Headwater’s indirect 

infringement allegations. As part of its response, Headwater incorporates its response 

to ROG 11. 

C. But Headwater’s RFA Responses Claim the 

While Headwater’s ROG 11 response claims t

Headwater’s RFA responses claim otherwise. 

In its December 6, 2023 responses to Samsung’s first set of RFAs, Headwater admits that: 

•

 RFA No. 1. 

•

 RFA No. 2. 

In its February 26, 2024 responses to Samsung’s second set of RFAs, Headwater

states―for each asserted patent―that it 

 RFA Nos. 3-5. In other words, Headwater 

 (which is what 

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would make such products subject to 35 U.S.C. 287’s marking requirement).

D. And Dr. Raleigh Testified that t

At his June 14, 2024 deposition, Dr. Raleigh—the sole inventor of the asserted patents, 

former ItsOn CEO, and founder and managing board member at Headwater—testified that 

Raleigh Dep. 197:11-19, June 14, 2024.

Id. at 201:01-06.

Id. at 202:13-203:25.

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Id. at 215:9-18.

Dr. Raleigh also testified that 

. See id. at 201:07-202:12.

E. Samsung Tried to Get Headwater to Correct its Interrogatory Responses

On July 17, 2024, Samsung wrote Headwater outlining the above and asking, inter alia, 

for correction of Headwater’s incorrect response to ROG 11. Ex. 2. 

Over the next two weeks, Samsung repeatedly sought a substantive response to this letter.

Headwater never gave one. 

On August 1, 2024, the parties met and conferred on, inter alia, Headwater’s incorrect 

response to ROG 11. Headwater committed to promptly supplementing its ROG 11 response 

consistent with its “theory” in this case (as opposed to the -422 case from which the response was 

copied). Thompson Decl., ¶ 5. 

Now, over a month later, Headwater still has not corrected its response. This failure is 

unjustified and surprising, as just five days ago (September 5), Headwater sent Samsung a letter 

stating: “

” Ex. 3. Further, yesterday (September 9), Headwater supplemented its responses to other 

interrogatories, but left its response to ROG 11 uncorrected. While Discovery has been briefly 

extended to September 20th, motions to compel remain due today (September 10). Regrettably, 

Samsung cannot rely on Headwater’s empty promise to supplement and this motion follows.

LEGAL STANDARDS

Parties may “obtain discovery regarding any nonprivileged matter that is relevant to any 

party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). 

“Rule 26 imposes an obligation on parties to conduct a reasonable inquiry into the factual 

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basis of their discovery responses.” Woods v. DeAngelo Marine Exhaust, Inc., 692 F.3d 1272, 

1279 (Fed. Cir. 2012) (quoting Fed. R. Civ. P. 26(e)(1)). A party “who has responded to an 

interrogatory...must supplement or correct” its response “in a timely manner if the party learns 

that in some material respect the disclosure or response is incomplete or incorrect, and if the 

additional or corrective information has not otherwise been made known to the other parties during 

the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). 

A party seeking discovery may move to compel when the opposing party fails to answer 

an interrogatory. See Fed. R. Civ. 37(a)(3)(B)(iii)-(iv). “[An] incomplete disclosure, answer, or 

response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. 37(a)(4).

The party resisting discovery must show specifically how each discovery request is not 

relevant or otherwise objectionable. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 

F.2d 1482, 1485 (5th Cir. 1990). Ultimately, if a party fails to provide information as required 

by Rule 26(a) or (e), that party is not allowed to rely on that information unless the failure was 

substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1).

“It is long standing and well-settled that methods of discovery are complementary, rather 

than alternative or exclusive... .” Yater v. Powderhorn Ski Co., 2018 WL 776361, at *7 (D. Colo. 

Feb. 8, 2018). A party cannot shirk its obligations under Rules 33 and 36 by complying with one 

form of discovery and not another. See, e.g., Meltzer/Austin Rest. Corp. v. Benihana Nat’l Corp., 

2013 WL 2607589, at *4 n.5 (W.D. Tex. June 10, 2013) (even if deposition testimony provided 

answers to interrogatories’ questions, “it would not obviate the need for [the responding party] to 

provide interrogatory answers in accordance with the Federal Rules of Civil Procedure”); Ayers v. 

Contl. Cas. Co., 240 F.R.D. 216, 226 (N.D.W. Va. 2007).

ARGUMENT 

There is no dispute that the requested corrected/supplemental information is relevant. Nor 

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has Headwater argued that that there would be any undue burden in correcting its response. Indeed, 

the only issue is that Headwater simply has not done so. During the meet and confer, Headwater 

did not provide any basis for failing to correct its response to ROG 11, which is contradicted by 

its RFA responses, Dr. Raleigh’s testimony, and correspondence from Headwater’s counsel. 

Does Headwater assert that: (i) the ItsOn solution practiced any claim of any patent asserted 

in this case; and, if so, that (ii) any such products were marked? If not, then what is the (detailed)

basis for Headwater’s willfulness allegations (ROG 11) and, inter alia, its copying allegations 

(ROG 4, incorporating ROG 11 response)? There is no reason that Headwater has still―at the 

end of discovery―not provided a correct interrogatory response (as opposed to an incorrect 

response copied and pasted from another case). Indeed, Headwater made these allegations in its

Complaint, and therefore Headwater supposedly had factual bases for these assertions when filed. 

Further, Headwater served its inconsistent RFA responses nine months ago, and Dr. Raleigh gave

inconsistent testimony three months ago. It is beyond time for Headwater to have served a correct 

response to ROG 11 that discloses the true bases for its willfulness, copying, and damages claims, 

if any. Samsung should not have to file this motion to get it.

CONCLUSION

For the foregoing reasons, Samsung respectfully requests that the Court grant this motion 

and compel Headwater to provide a correct response to Interrogatory No. 11.

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Dated: September 10, 2024 Respectfully submitted,

By: /s/ Benjamin K. Thompson

Ruffin B. Cordell

TX Bar No. 04820550

Michael J. McKeon

DC Bar No. 459780

mckeon@fr.com

Jared Hartzman (pro hac vice forthcoming)

DC Bar No. 1034255

hartzman@fr.com

FISH & RICHARDSON P.C.

1000 Maine Avenue, SW, Ste 1000

Washington, D.C. 20024

Telephone: (202) 783-5070

Facsimile: (202) 783-2331

Thad C. Kodish

GA Bar No. 427603

tkodish@fr.com

Benjamin K. Thompson

GA Bar No. 633211 

bthompson@fr.com

Jonathan B. Bright

GA Bar No. 256953 

jbright@fr.com

Christopher O. Green

GA Bar No. 037617

cgreen@fr.com

Noah C. Graubart

GA Bar No. 141862

graubart@fr.com

Sara C. Fish

GA Bar No. 873853

sfish@fr.com

Nicholas A. Gallo (pro hac vice forthcoming)

GA Bar No. 546590

gallo@fr.com

Steffen C. Lake (pro hac vice forthcoming)

GA Bar No. 512272

lake@fr.com

Vivian C. Keller (pro hac vice)

GA Bar No. 651500

keller@fr.com

FISH & RICHARDSON P.C.

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1180 Peachtree St. NE, Fl. 21

Atlanta, GA 30309

Telephone: (404) 892-5005

Facsimile: (404) 892-5002

Leonard E. Davis

TX Bar No. 05521600

ldavis@fr.com

Andria Rae Crisler

TX Bar No. 24093792

crisler@fr.com

Thomas H. Reger II

Texas Bar No. 24032992

reger@fr.com

FISH & RICHARDSON P.C.

1717 Main Street, Suite 5000

Dallas, TX 75201

Telephone: (214)747-5070

Facsimile: (214) 747-2091

John-Paul R. Fryckman (pro hac vice)

CA Bar No. 317591

John W. Thornburgh

CA Bar No. 154627

thornburgh@fr.com

FISH & RICHARDSON P.C.

12860 El Camino Real, Ste. 400

San Diego, CA 92130

Telephone: (858) 678-5070

Facsimile: (858) 678-5099

Katherine D. Prescott (pro hac vice)

CA Bar No. 215496

prescott@fr.com

FISH & RICHARDSON P.C.

500 Arguello Street

Suite 400

Redwood City, CA 94063

Telephone: (650) 839-5180

Facsimile: (650) 839-5071

Kyle J. Fleming (pro hac vice)

NY Bar No. 5855499

kfleming@fr.com

FISH & RICHARDSON P.C.

7 Times Square, 20th Floor,

New York, NY 10036

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Telephone: (212) 765-5070

Facsimile: (212) 258-2291

Melissa R. Smith

State Bar No. 24001351

Melissa@gillamsmithlaw.com 

GILLAM & SMITH, LLP

303 South Washington Avenue

Marshall, Texas 75670

Telephone: (903) 934-8450

Facsimile: (903) 934-9257

Andrew Thompson (“Tom”) Gorham

State Bar No. 24012715

tom@gillamsmithlaw.com

GILLAM & SMITH, LLP

102 N. College, Suite 800

Tyler, Texas 75702

Telephone: (903) 934-8450

Facsimile: (903) 934-9257

Michael E. Jones 

State Bar No. 10929400 

mikejones@potterminton.com 

Shaun W. Hassett 

State Bar No. 24074372 

shaunhassett@potterminton.com 

POTTER MINTON, P.C. 

102 N. College Ave., Suite 900 

Tyler, Texas 75702 

Telephone: (903) 597-8311 

Facsimile: (903) 593-0846

Lance Lin Yang

CA. Bar No. 260705

Lanceyang@quinnemanuel.com

Kevin (Gyushik) Jang

CA Bar No. 337747

kevinjang@quinnemanuel.com

Sean S. Pak

CA Bar No. 219032

seanpak@quinnemanuel.com

QUINN EMANUEL URQUHART &

SULLIVAN, LLP

50 California Street, 22nd Floor

San Francisco, CA 94111

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Telephone: (415) 875-6600

Jon Bentley Hyland

Texas Bar No. 24046131

jhyland@hilgersgraben.com

Grant K. Schmidt

Texas Bar No. 24084579

gschmidt@hilgersgraben.com

HILGERS GRABEN PLLC

7859 Walnut Hill Lane, Suite 335

Dallas, Texas 75230

Telephone: (972) 645-3097

ATTORNEYS FOR DEFENDANTS

SAMSUNG ELECTRONICS CO., LTD. AND

SAMSUNG ELECTRONICS AMERICA, INC.

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CERTIFICATE OF CONFERENCE

Counsel for Plaintiff and counsel for Defendants met and conferred via telephone on August 

1, 2024, in compliance with Local Rule CV-7(h). Plaintiff opposes this motion.

/s/ Benjamin K. Thompson

Benjamin K. Thompson 

CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL

I certify that the following document is authorized to be filed under seal pursuant to the 

Protective Order entered in this case.

/s/ Benjamin K. Thompson

Benjamin K. Thompson 

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was filed 

electronically with the Clerk of the Court of the Eastern District of Texas using the ECF System 

under seal on September 10, 2024 and served plaintiff with a copy via electronic mail.

/s/ Benjamin K. Thompson

Benjamin K. Thompson

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