American Patents LLC v. Mediatek, Inc. et al

Western District of Texas, txwd-6:2018-cv-00339

Unopposed MOTION for Leave to File Lenovo's Response to Plaintiff's Sur-Reply to Motion to Sever and Stay Pursuant to the Customer-Suit Exception Doctrine by Lenovo (Shanghai) Electronics Technology Co. Ltd., Lenovo Group Ltd.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION AMERICAN PATENTS LLC, Plaintiff, v. CIVIL ACTION NO. 6:18-CV-339-ADA MEDIATEK INC., MEDIATEK USA INC., BROADCOM PTE. LTD., BROADCOM CORPORATION, LENOVO (SHANGHAI) ELECTRONICS TECHNOLOGY CO. LTD., LENOVO GROUP, LTD., NXP SEMICONDUCTORS N.V., NXP B.V., NXP USA, INC., QUALCOMM INCORPORATED and QUALCOMM TECHNOLOGIES, INC., Defendants. SPECIALLY APPEARING DEFENDANTS LENOVO (SHANGHAI) ELECTRONICS TECHNOLOGY CO., LTD. AND LENOVO GROUP LTD.'S UNOPPOSED MOTION FOR LEAVE TO FILE A RESPONSE TO PLAINTIFF'S SUR-REPLY TO MOTION TO SEVER AND STAY PURSUANT TO THE CUSTOMER-SUIT EXCEPTION DOCTRINE Pursuant to Local Rule CV-7(f)(1), specially appearing Defendants Lenovo (Shanghai) Electronics Technology Co., Ltd. and Lenovo Group Ltd. (the "Lenovo Defendants") request leave to file a short 3-page response to American Patents LLC's ("Plaintiff") sur-reply to the Lenovo Defendants' Motion to Sever and Stay Pursuant to the Customer-Suit Exception Doctrine (Dkt. 93) (the "Sur-Reply"). Plaintiff's sur-reply contains arguments that it could have, and should have, briefed in its opposition. If Plaintiff had done so, the Lenovo Defendants would have had the opportunity to address those arguments in its reply brief. But Plaintiff instead waited opportunistically for Lenovo's reply brief, and then took a second bite at the apple with its sur-reply. This was improper. 1 In particular, in its opposition, Plaintiff deliberately chose not to address Lenovo's willingness to be bound. (Compare Opp., p. 6 ("Lenovo has not agreed to be bound by any decision") with Reply, p. 2, Supp. Yip. Decl. Ex. A. (Lenovo Defendants' counsel confirming that "[w]e are still willing to engage with you in discussions regarding a stipulation").) Having made such a choice, it would be unfair for Plaintiff to get a sur-reply (gaining an extra 5 pages of briefing in the process), which cites new cases and makes new arguments, without giving the Lenovo Defendants' an opportunity to respond (as they would have been able to in a reply). For example, the notion that a stipulation to be bound as to invalidity, Markman, and technical infringement is immaterial because the stipulation must "dispose of all issues" is simply wrong. Respectfully, the Lenovo Defendants should be given the opportunity to correct the record. Although Plaintiff expended 5 pages in its sur-reply, the Lenovo Defendants have limited their response to 3 pages, to minimize the burden on the Court. The Lenovo Defendants have conferred with Plaintiff, and it does not oppose this motion, but asked that the following statements be included here: Plaintiff American Patents does not agree that a sur-sur-reply for Lenovo is warranted here. But to avoid burdening the Court with briefing on that discrete issue, American Patents does not oppose the motion. Pursuant to Local Rule CV-7(b), the Lenovo Defendants file their proposed response to Plaintiff's sur-reply as Exhibit A to this motion for leave. A proposed order is also submitted herewith. Dated: April 26, 2019 /s/ Eric H. Findlay Eric H. Findlay Texas State Bar No. 00789886 FINDLAY CRAFT, P.C. 102 North College Avenue, Suite 900 Tyler, TX 75702 (903) 534-1100 (903) 534-1137 (Fax) 2 EFindlay@FindlayCraft.com Martin Bader (Admitted Pro Hac Vice) Michael J. Hopkins (Admitted Pro Hac Vice) SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 12275 El Camino Real, Suite 200 San Diego, CA 92130-4092 (858) 720-8900 (858) 509-3691 (Fax) mbader@sheppardmullin.com mhopkins@sheppardmullin.com Lai L. Yip (Admitted Pro Hac Vice) Toni Qiu (Admitted Pro Hac Vice) SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Four Embarcadero Center, 17th Floor San Francisco, CA 94111 (415) 434-9100 (415) 434-3947 (Fax) lyip@sheppardmullin.com tqiu@sheppardmullin.com Attorneys for Specially Appearing Defendants Lenovo (Shanghai) Electronics Technology Co., Ltd. and Lenovo Group Ltd. 3 CERTIFICATE OF SERVICE I hereby certify that on April 26, 2019, a true and correct copy of the foregoing SPECIALLY APPEARING DEFENDANTS LENOVO (SHANGHAI) ELECTRONICS TECHNOLOGY CO., LTD. AND LENOVO GROUP LTD.'S MOTION FOR LEAVE TO FILE A RESPONSE TO PLAINTIFF'S SUR-REPLY TO THE LENOVO DEFENDANTS' MOTION TO SEVER AND STAY PURSUANT TO THE CUSTOMER-SUIT EXCEPTION DOCTRINE was filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. Mail. Parties may access this filing through the Court's electronic filing system. /s/ Eric H. Findlay Eric H. Findlay 4