Ixi Mobile (R&D) Ltd. et al v. Apple, Inc.

Northern District of California, cand-4:2015-cv-03755

DECLARATION of Gregory T. Chuebon in Support re: 27 MOTION to Transfer Case Apple Inc.'s Notice of Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a). Document filed by Apple, Inc.

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Case No. 14-cv-7954-RJS-DF IXI Mobile (R&D) Ltd. and IXI IP, LLC, Plaintiffs, - against - APPLE INC., Defendant. DECLARATION OF GREGORY T. CHUEBON IN SUPPORT OF DEFENDANT APPLE INC.'S MOTION TO TRANSFER I, Gregory T. Chuebon, declare as follows: 1. I am an attorney with Simpson Thacher & Bartlett LLP at 425 Lexington Ave., New York, New York 10017, and represent Apple Inc. ("Apple") in this action. I make this Declaration in support of Apple's Reply Brief in Support of its Motion to Transfer. I have personal knowledge of the matters stated in this declaration, and, if called as a witness, I could and would testify competently thereto. 2. On February 19, 2015, counsel for Plaintiffs IXI Mobile (R&D), Ltd. ("IXI Mobile") and IXI IP, LLC ("IXI IP") (collectively "IXI") produced to counsel for Apple a copy of a License Agreement between IXI Mobile and IXI IP (the "IXI License Agreement"). 3. As a pre-condition of the production of the IXI License Agreement, counsel for IXI required that the document be treated as Attorneys' Eyes Only and, should it need to be filed with the Court, that it be filed under seal. 4. Upon inspection of the two-page IXI License Agreement it became apparent that it was part of a larger Patent Purchase Agreement. On February 19, 2015, counsel for Apple requested the additional pages of the larger Patent Purchase Agreement. Counsel for IXI has since produced another four-page document, but has not so far provided the entire document of which the IXI License Agreement was a part. 5. On February 20, 2015 counsel for IXI produced to counsel for Apple a copy of a document entitled "Assignment of Patent Rights." The Assignment of Patent Rights does not appear to be a part of the larger Patent Purchase Agreement. 6. I have reviewed the Declaration of Zion Hadad (Dkt. 52 (the "Hadad Declaration")), which states that IXI Mobile and IXI IP "have entered into an agreement whereby IXI IP obtained ownership of the Patents-in-Suit." Hadad Declaration, ¶ 4. 7. The Hadad Declaration also states that "IXI IP then exclusively licensed the Patents-in-Suit to IXI Mobile." See Id. 8. I have reviewed the IXI License Agreement and the Assignment of Patent Rights. Based upon my review of these documents, I have concluded that IXI IP or IXI Mobile would not be able to demonstrate that IXI Mobile retains any exclusionary rights to the Patents-in-Suit. 9. Based upon my review of the IXI License Agreement and the Assignment of Patent Rights, I have concluded that IXI IP or IXI Mobile would not be able to demonstrate that IXI Mobile has not assigned substantially all rights in the Patents-in-Suit to IXI IP. 10. Given the short amount of time between the production of the IXI License Agreement and Assignment of Patent Rights and the deadline for Apple to file its reply to IXI's brief in opposition to Apple's Motion to Transfer (Dkt. 50), Apple was not able to file a copy of the IXI License Agreement under seal, or able to secure IXI's agreement to file it without 2 sealing. While there appears to be nothing confidential in the IXI License Agreement, Apple has honored IXI's request to keep the IXI License Agreement out of the public record for now. However, Apple holds a good-faith belief that the contents of the IXI License Agreement are relevant to the Court's decision in the matter of Apple's Motion to Transfer. Should the Court wish to inspect the IXI License Agreement in camera, counsel for Apple is ready to coordinate such inspection with counsel for IXI. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on the 20th day of February, 2015 at New York, New York. /s/ Gregory T. Chuebon Gregory T. Chuebon 3